f/k/a archives . . . real opinions & real haiku

. . plan of exit?

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  Hasn’t Woodward been reading Klau, or Dow, or thou?
  
  
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  I hope John Kerry and his advisors are thinking hard about Sovereignty As Exit Strategy, and just what it would mean for our nation, our politics, our allies, and the people of Iraq and the Middle East.

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The very visible NYC law firm of Wilens & Baker — known for its 1-800-DIVORCE, 1-800-BANKRUPT and 1-800-IMMIGRATION subway ads — has received public censure “for engaging in a pattern of rude, neglectful and demeaning conduct toward clients.”  Partner Lawrence M. Wilens was also censured individually.  (NYLawyer/NYLJ, High-Visibility NY Law Firm Censured, 05-21-04)

According to the NYLJ article:

“The violations arose in connection with the firm’s representation of several immigration clients between 1998 and 2002. When these clients or their relatives, many of whom spoke little English, visited the firm’s offices to inquire about their cases, employees would refuse to discuss the cases unless overdue or additional fees were paid. Those who were unable to pay were often yelled at and ordered to leave.”

  In its unanimous, per curiam decision, the Appellate Division, 1st Department, was unmoved by WB’s arguments that the censure should be private, due to the efforts made by the firm to improve its behavior — including anger management classes — and procedures; its sending of (rather vague and circumspect) apology letters; the refunding of fees to the complainants; and the garnering of character references from prominent corporate and criminal lawyers .  In Matter of Wilens and Baker (2004 NYSlipOp 04077, May 20, 2004) the court stressed:

“In our view, it would be particularly inappropriate to impose private discipline against an attorney or law firm that engages in a pattern of misconduct involving rude and discourteous behavior to clients-conduct that strikes at the very heart of a lawyer’s or law firm’s relationship to the public.” 

The Referee found that the respondents had “conducted themselves offensively with their clients… and also acted in intimidating ways to obtain additional or due fee payments,” and that consequently, “[they] should face the consequences of public knowledge of what they have done, notwithstanding their real and sincere efforts at reform.” The Referee also found it appropriate to impute to the WB firm the misconduct of its name partner.

It rejected an argument that being rude was not worthy of public censure, because it isn’t neglect of legal matters in the “classic sense.”  The court retorted: “this argument overlooks the prejudice and anguish caused by their pattern of threatening to cease working on their clients’ cases until additional legal fees were paid.”  Significantly, the court also stressed that (emphasis added):

Disciplinary sanctions serve both deterrent and punitive functions . . . and although respondents’ reforms of their office procedures likely will assist in preventing future violations, they do not serve the punitive purpose of demonstrating that such unbridled misconduct will not go unpunished.

The pyj gang agree with the 1st Department — public censure is most appropriate, and “respondents’ misconduct likely would have warranted the more severe sanction of suspension,” had WB not taken such significant reform efforts.   We hope other firms are duly deterred.

•   We disagree with the Referee, however, to the extent that he suggests that public censure is more appropriate for high-volume law practices than for classier firms.  Per NYLJ, the Referee stated “All of us at the bar who practice in more discrete [sic] realms, subject to far less exposure, are in a sense ‘represented’ by our colleagues who choose to take on such a volume of clients, advertise on subways and in other ways reach out to the public.”    Okay, but the public (and the non-elite bar) would like to see that “more discreet” law firms are held accountable, too.
  
• Afterthought (05-22-04):  We try not to be catty around here, so we didn’t directly mention the Referee’s malaprop “discrete” last night.    But, we do have to chuckle at the fact that “discreet” means both showing self-restraint and “Free from ostentation or pretension; modest.”

“Dmitri Shubov, 31, of San Francisco was charged with three counts of unlawful access to store communications and one count of making false statements, Assistant U.S. Attorney Andrew Stolper said Wednesday. He faces up to 20 years in prison if convicted.”

LegalMatch matches lawyers with potential clients, and has been controversial with many attorneys and bar groups, often for its marketing methods and high upfront fees.  See, e.g., MyShingle’s take; Matt Homan’s post, Why I’ll Never Use LegalMatch; as well as ethicalEsq’s discussion (which, this evening, we were surprised to find copied onto the LegalMatch site.)

Defending lawyers is pretty low on our priority list.  But, a recent piece at Overlawyered.com was just so unfair, that we need to take our e-friend Walter Olson to task, and try to set the record straight. Walter might not be a lawyer, but his posting Damage caps for me, but not for thee (May 13, 2004) proves he can parse words misleadingly with the best of them.

• The effect, as was predictable, is that others are calling lawyers hypocrites in a situation — the creation of Client Protection Funds paid for by lawyers — where the legal profession deserves at least a little praise (along with some encouragement to do more).

After correctly noting that the organized bar seldom supports capping victim recovery fees, Walter reports (our emphasis):

“It turns out, however, that the bar enthusiastically supports the capping in nearly every state of one particular form of compensation, namely, the compensation of clients who are embezzled from or otherwise defrauded by their lawyers. In Pennsylvania, for example, the official Pennsylvania Lawyer Fund for Client Security (more) caps damages payable to defrauded clients at $75,000, although the loss actually sustained by the victimized client often runs far higher than that.   Columnist Don Spatz of the Reading, Pa. Eagle notices the irony: “Even if you can prove your lawyer stole $200,000 from you, you’re out of luck. There’s a cap. … I haven’t heard lawyers worry about caps taking away those victims’ rights.” (“First, lawyer, heal thyself“, Reading Eagle, Mar. 24, 2004, at HALT site).“

Walter goes on to (sort of) “explain” and then dismiss the legal profession’s position:

“In a number of states, it should be noted, lawyers impose an effective cap of zero on this particular kind of claim, by the simple method of not having established any collective client protection scheme at all. And there is a certain very plausible logic to that position: why after all should rank and file attorneys be asked to clean up the messes left by their errant brethren? Is a lawyer his brother’s keeper?  It’s just that this argument would sit better were the leaders of the bar not constantly denouncing the medical profession for its alleged failure to police itself.”

If you didn’t already know what kind of fund and claims Walter is talking about, you’d be very likely to incorrectly conclude (like the fighting docs did when reading the original Reading Eagle column) that lawyers had supported and states had imposed limits on the amounts that injured legal clients could receive in malpractice claims or litigation against their lawyers.  That’s not at all what is happening.  Walter is referring to lawyer Funds for Client Protection (or Client Security).  You should know:

1. Client Protection funds in no way limit the amount of money a client injured by a lawyer can receive through the courts or from malpractice insurance.  As the NY Fund’s FAQ page explains: “The Lawyers’ Fund is a remedy for law clients who have been injured [by the dishonest conduct of a lawyer] but cannot get reimbursement from the lawyer who caused the loss, or from insurance or other sources.”
2. The funds are financed totally from lawyer contributions (not a penny of taxpayer money).  In New York, for example, 20% of the registration fee paid by each member of the bar goes into the fund.
3. Typical losses covered include the theft of money from estates of dead clients; escrow funds in real property closing; settlements in personal injury actions; and money embezzled from clients in investment transactions.
4. The funds have limitations on how much each client can be reimbursed, because there is a finite amount of money in each fund, and it would be unfair to have clients with the largest losses (often those with the largest estates or investments) receive payments that empty the fund, leaving nothing for other victims.  The limits differ in the various states.  As Walter Olson noted, it is $75,000 per client in Pennsylvania.  In New York, the fund Trustees (who receive no pay for their work) may grant “up to a maximum of $300,000 for each client loss.”  Such amounts are far from meaningless for clients who otherwise would be uncompensated.  For 2003, New York paid out almost $2 million dollars from its Fund, which has awarded about $100 million in total since 1982.
5. In a medical malpractice case, or other tort matter, it is the defendant who has been found liable who is asked to pay the victim.  Here, by definition, it is not the “guilty” lawyer, but all lawyers who are paying the victim.  That seems to me to be a very big distinction.

You can learn more about Client Protection Funds in your particular state, by going to this state map provided by the The National Client Protection Organization.  The ABA, which has a Client Protection homepage, has promulgated Model Rules for Client Protection Funds, and did a major survey of such funds in 2002.

We also agree with the general proposition from HALT, that client protection funds need to be better funded in many states. [see “The Sham of Client Compensation Funds” by HALT staff ATTORNEY, Steven Serdikoff (2000)] However, it would make little sense — and neither Walter Olson nor HALT is suggesting, I hope — that every lawyer be assessed whatever it takes to pay off every claim by a client hurt by another lawyer.  Even Prof. Yabut and the departed ethicalEsq believe that only a small portion of lawyers actually steal their clients’ money or property.

• A personal note:  After spending his legal career working to protect consumers, children and the poor — with no complaint ever made about me to a disciplinary board or a malpractice insurer — your Editor would feel rather oppressed if asked to write a blank check to the Client Protection Fund.  That check would surely bounce.

Around here, distorting facts — by omission or commission — to score points for one side against another is frowned upon (despite that J.D. degree on our wall).   So is misleading pseudo-logic and guilt by association.  Let us know if we ever seem to be doing it.   Once we find such shenanighans on a website, we start to wonder just what we can believe from that source.  As we’ve told several teenagers: it’s easier to earn trust than to re-earn it.

Update (05-22-04): Cut and Cure has posted a Reply.  You can find it, along with our response here.

A Texas appellate court won’t let divorce lawyer Mary McKnight appear at trial for Bill Sanders, because the client “did carpentry work on McKnight’s Dallas law office to help defray the fees he incurred in his divorce proceedings.”  According to the 5th Court of Appeals in Dallas, the arrangement turned the lawyer into her client’s employer, and thus a witness on issues relating to “Bill’s abilities to care for the minor child or pay child support.” (Texas Lawyer/NYLawyer, Lawyer Ousted From Case for Not Taking Cash, May 19, 2004)

The memorandum opinion in In re Joyce Elizabeth Sanders turned to Texas disciplinary Rule 3.08 for guidance in determining disqualification of counsel, since McKnight was being called as a witness by opposing counsel.  The court reasoned:

“After reviewing the record, we conclude the trial court abused its discretion in denying the motion to disqualify McKnight from acting as trial counsel for Bill. McKnight’s testimony as an employer relating to Bill’s abilities to care for the minor child or pay child support, and her possibly adverse testimony about when the employment began leads us to conclude a fact finder may be confused or mislead by McKnight’s dual roles.”

The writ would allow McKnight to continue to act as counsel for Bill on pretrial matters and, if the requirements of 3.08(c) are met, other attorneys with McKnight’s firm may act as advocate for Bill in any adjudicatory proceeding in this case.  In a strong Dissenting Opinion, Justice Whittington argued: 

The “employment” referred to by the majority is the performance of handyman jobs that Bill Sanders did for Mary McKnight after hours to help defray the cost of attorney’s fees. The record before us supports the trial judge’s determination that any confusion caused by McKnight’s testimony regarding Bill’s completion of the jobs for her would be de minimis.

        Additionally, disciplinary rule of professional conduct 3.08 should not be used as a tactical weapon to deprive the opposing party of the right to be represented by the lawyer of his or her choice because reducing the rule to such a use would subvert its purpose. . . . That is precisely what happened in this case.

The Texas Lawyer article points out that the decision “troubles some family law attorneys who say the opinion could kill a long tradition of bartering between lawyers and low-income clients.”  Lawyer McKnight says it will “have a detrimental effect on solos and small-firm lawyers who sometimes accept services in exchange for representing clients who have no other way to pay them.”  

• According to the article, Bill Sanders had been billed more than $100,000 in legal fees in this bitter divorce, and had performed about $25,000 in handyman and carpentry services.

A Texas appellate court won’t let divorce lawyer Mary McKnight appear at trial for Bill Sanders, because the client “did carpentry work on McKnight’s Dallas law office to help defray the fees he incurred in his divorce proceedings.”  According to the 5th Court of Appeals in Dallas, the arrangement turned the lawyer into her client’s employer, and thus a witness on issues relating to “Bill’s abilities to care for the minor child or pay child support.” (Texas Lawyer/NYLawyer, Lawyer Ousted From Case for Not Taking Cash, May 19, 2004)

The memorandum opinion in In re Joyce Elizabeth Sanders turned to Texas disciplinary Rule 3.08 for guidance in determining disqualification of counsel, since McKnight was being called as a witness by opposing counsel.  The court reasoned:

“After reviewing the record, we conclude the trial court abused its discretion in denying the motion to disqualify McKnight from acting as trial counsel for Bill. McKnight’s testimony as an employer relating to Bill’s abilities to care for the minor child or pay child support, and her possibly adverse testimony about when the employment began leads us to conclude a fact finder may be confused or mislead by McKnight’s dual roles.”

The writ would allow McKnight to continue to act as counsel for Bill on pretrial matters and, if the requirements of 3.08(c) are met, other attorneys with McKnight’s firm may act as advocate for Bill in any adjudicatory proceeding in this case.  In a strong Dissenting Opinion, Justice Whittington argued: 

The “employment” referred to by the majority is the performance of handyman jobs that Bill Sanders did for Mary McKnight after hours to help defray the cost of attorney’s fees. The record before us supports the trial judge’s determination that any confusion caused by McKnight’s testimony regarding Bill’s completion of the jobs for her would be de minimis.

        Additionally, disciplinary rule of professional conduct 3.08 should not be used as a tactical weapon to deprive the opposing party of the right to be represented by the lawyer of his or her choice because reducing the rule to such a use would subvert its purpose. . . . That is precisely what happened in this case.

The Texas Lawyer article points out that the decision “troubles some family law attorneys who say the opinion could kill a long tradition of bartering between lawyers and low-income clients.”  Lawyer McKnight says it will “have a detrimental effect on solos and small-firm lawyers who sometimes accept services in exchange for representing clients who have no other way to pay them.”  

• According to the article, Bill Sanders had been billed more than $100,000 in legal fees in this bitter divorce, and had performed about $25,000 in handyman and carpentry services.

As we noted on May 1st, the legal profession in America spends Law Day congratulating itself.  In Australia, lawyers spend Law Week seriously working to make the profession and the entire justice system operate “efficiently and in the public interest.”

[A]n Australian Academy of Law should be established “as a high priority, to bring together the various strands of an increasingly fragmented profession—judges, barristers, large firm solicitors, small firm solicitors, professional associations, students and academics—to focus attention on issues of professional identity, ethics and public service.”

  An article from Australian News (Laws Schools Out of Touch, 19 May 04, via law.com NewsWire In Brief) notes Weisbrot’s belief that “the level of repetitive detail” was turning eager young students into time-servers late in their degrees, and explains (emphasis added):

Professor Weisbrot . . . said a recent study by the commission, Managing Justice, found that while the profession had changed dramatically, the teaching of it was still too much “chalk and talk“.

“If what you’re doing is teaching law students to remember rules from cases, you’re not giving them much of an intellectual skill.  You’d be better off teaching them the people stuff and then teaching them how to do all the legal research they need to do to find the law in every particular context.

As we noted on May 1st, the legal profession in America spends Law Day congratulating itself.  In Australia, lawyers spend Law Week seriously working to make the profession and the entire justice system operate “efficiently and in the public interest.”

[A]n Australian Academy of Law should be established “as a high priority, to bring together the various strands of an increasingly fragmented profession—judges, barristers, large firm solicitors, small firm solicitors, professional associations, students and academics—to focus attention on issues of professional identity, ethics and public service.”

  An article from Australian News (Laws Schools Out of Touch, 19 May 04, via law.com NewsWire In Brief) notes Weisbrot’s belief that “the level of repetitive detail” was turning eager young students into time-servers late in their degrees, and explains (emphasis added):

Professor Weisbrot . . . said a recent study by the commission, Managing Justice, found that while the profession had changed dramatically, the teaching of it was still too much “chalk and talk“.

“If what you’re doing is teaching law students to remember rules from cases, you’re not giving them much of an intellectual skill.  You’d be better off teaching them the people stuff and then teaching them how to do all the legal research they need to do to find the law in every particular context.

About an hour ago, I received a much-forwarded email from a very good friend of mine.  It irked me.  Here’s my Reply email to her, which I hope is self-explanatory (and persuasive):

Subject: DON’T BUY GAS ON MAY 19TH

Dear [Old Friend],

 

I hate to sound like a grump, but I must ask you not to send me any email message that asks to be forwarded “to everyone you know,” or any similar kind of chain letter.   There are lots of reasons, but the most important to me are

(1) they are a spammer’s or pervert’s dream — the email address of every single person in the entire chain becomes available to everyone who receives the email message.  I bet you care about that for yourself, and I definitely do for me.

 

(2) almost every single one of these chain letters is either false, futile or f-ing-stupid.

I just checked out the May 19th Gas Out email message at Urban Legends.com and pasted their information below.  (It contains their usual, useful analysis.)  If you plan to send this material to someone else, please don’t just hit Forward; instead, paste it into a new message, so that my email address and name aren’t distributed further. 

 

Thanks for your patience with me. Email and internet hygiene (along with common sense) are important!

s/David

Don’t Buy Gas on May 19th   [from UrbanLegends.About.com]
 
Yet another variant of the ‘Gas Out’ chain letter, this one urging consumers to boycott gas stations on May 19th to ‘send a message’ to the oil companies 

Description:  Email chain letter
Circulating since:  May 2004
Status:  Ill conceived
Analysis:  See below   

Comments:  With U.S. gasoline prices at a 13-year high, it’s understandable that consumers are fed up and hankering for relief, but it’s fair to ask whether mass-forwarding yet another “boycott gas” chain letter will achieve the desired result. Based on past experience, the answer is: not likely.

There are two glaring flaws in the approach:

1. A successful boycott requires a sustained, organized effort by a large number of participants; randomly circulating a chain letter amounts to no organization at all. And we know from past attempts that no matter how many people jump on the bandwagon, actual participation in email-driven boycotts is spotty and ultimately negligible.
   
   
   
2. It’s illogical. Refusing to buy gasoline on one particular day of the month won’t affect the oil companies’ overall sales or profits. Why not? Because everyone who skips buying gasoline on May 19 will be filling their tanks on the 20th. An effective boycott would require consuming less fuel, not just buying it on one day instead of another.

The claim that a one-day boycott would result in an industry loss of over $4.6 billion is a pure fabrication, by the way. According to Euromonitor International, the total sales of petroleum products for all U.S. gas stations in 2002 was $205 billion, which works out to just over a half-billion dollars a day.

Update:  1-Day Gas Boycott Is Just a Lot of Hot Air – “A one-day boycott may make you feel like you’re standing up to Big Oil, but in reality, it won’t do much, despite what the email promises.” (Detroit Free Press, 18 May 2004)

I know my readers are too knowledgeable to fall for Chain Letters and meaningless boycotts.  Don’t forget to go to hoax protection sites like Urban Legends and Purportal.com, when you aren’t sure whether you’ve been sent a lot of cyber b.s. 

This weblog usually stays away from politics, so let’s just call this posting prognostication — a little musing spiced with our customary skepticism.

  Many in the press and public are wondering whether the June 30th date for the transfer of power in Iraq will hold (e.g., Newsweek, “Pencil It In,” 05-17-05).  Others ponder what “sovereignty” really is, if U.S. troops are still in Iraq (e.g., Consortium News. com, Iraq’s “Sovereignty” Mirage, 05-18-04). 

The pyj team had an “aha! moment” on Sunday, when we heard Secretary of State Colin Powell being interviewed on ABC This Week.  Secretary Powell told George Stephanopoulos that theoretically the new Iraqi government can demand that foreign troops leave and America would respect such a request from a sovereign state. 

Our reaction:  that’s their exit strategy! 

  If we were political strategists, with an eye toward averting a re-election disaster in November, we would certainly be looking for a way to cut America’s losses in Iraq, in order to heal the Administration’s wounds before they’re mortal.  No matter how many American troops stay in Iraq after the handover of sovereignty, more Americans will be killed, much more American money will be spent there, and ugly turmoil or rebellion will surely take place.  There certainly won’t be any great success tableau to present to the voters before Election Day.

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  Update (05-25-04):  Somebody needs to remind TChirs at TalkLeft that Colin Powell has already told the nation that we would pull out American troops when the new Iraqi government asks us to do so.  All the vagueness about a withdrawal timetable will just make it easier for the Aministration to say it’s surprised when the new government asks us to leave, and we “reluctantly” acquiesce to their full sovereignty.

  Eight of her fellow judges brought the initial complaint against Judge O’Neill.  She says that she is “a conscientious judge” and will appeal.  According to News Channel 4, the feisty jurist responded to the filing of the complaint in June, 2002, with a statement that the charges were political in nature and:

“There isn’t one allegation in this complaint that could not be immediately directed toward any judge in Ohio, including the eight who initiated this groundless complaint.”

 

“I will not allow the independence of the judiciary to be tarnished by this obvious attempt to personally discredit me or thwart my candidacy for higher office at the expense of the public.”

  Okay, but would Judge O’Neill push a lawyer off a bridge, if her colleagues did?

 

We are very pleased to welcome poet Tom Painting as an Honored Guest in our HAIKUesque Collection (which has moved from our Righthand Margin into the main body of this website). Check regularly at this website, for frequently-changing Honored Guest selections, by some of the best writers of English-Language haiku — now, including Tom Painting!

Tonight, you’ll find the following haiku by Tom featured in HAIKUesque:

password
his ex-wife’s name
opens a file

 

spring plowing
a flock of blackbirds
turns inside out

Tom lives in Rochester, New York, where he teaches creative writing, and helps young students appreciate and write haiku. His poetry has been selected for the past five editions of the annual Red Moon Anthology of English Language Haiku; he is the author of the haiku chapbook piano practice, and is currently 2d Vice President of the Haiku Society of America.

We are honored and grateful to be allowed to share his poetry with you.

P.S. Tom and I would both like to point you to this Collection of winning poetry from The Nicholas A. Virgilio Memorial Haiku Competition for Grades 7-12. It is inspiring and humbling to see the fine haiku being written by grade school students.

We dare you: Find something useful in this article about legal weblogs. (The Recorder/New York Lawyer, Cover Letters and Resumes Are for Dummies: Try a Blog, by Brenda Sandburg, 05-15-04).

skepticalEsq‘s country cousin obliviousEsq has never been online, and he learned:

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  Bruce MacEwen launched his own Web log. Dubbed “Adam Smith, Esq.” in the hope of landing a big-time law firm management position.
  
  
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  One gets recognized among the “overwhelming” number of legal weblogs “by word of mouth, which intensifies as their blogs get listed on other people’s directories”
  
  
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  Despite having overwhelming numbers, the legal weblog community is “pretty tightly knit and courteous“
  
  
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  “While it can be difficult to find a particular blog, the legal community has its own directory, dailywhirl.com.”
  
  
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  There are at least a half dozen other legal weblogs
  
  
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  “MacEwen hasn’t developed marquee status in the blogosphere. Nor has he gotten any job offers yet”

  ObliviousEsq may be unemployed, but he’s no Dummy, and he’s sticking with resumes.

Dare #2:  Guess how long it took the writer to research and draft the article (please: no snide remarks about how long it took the Editor to write this posting).

• Sorry, unlike fabulously wealthy p/i lawyers such as Evan and Willie, Prof. Yabut can’t offer any prizes to winners of this or any other contest appearing on this site.