Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘ethics’

Lawyer charged with suborning perjury

According to the email sent by the DUI defense lawyer:

“they won’t have anyone there to testify how much you had to drink. You won’t be charged with perjury. I’ve never seen them charge anyone with perjury, and everybody lies in criminal cases, including the cops. If you want to tell the truth, then we’ll just plead guilty and you can get your jail time over with.”

(Nate Morabito, “Tri-Cities Attorney Arrested For Contempt Of Court”, News Channel 11/Tricities.com (Tenn./Va.), Nov. 30). It’s almost unheard-of for lawyers to be prosecuted for telling clients to lie on the stand — see here, for example — but it looks as if it may happen this time. (via Volokh who got it from CrimLaw)

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“Grinch, Esq.”

Let’s face it, Dahlia Lithwick points out: “the law offers a whole host of opportunities for wrecking the lives of others”. In fact, lawyers have been known to boast about the way they’ve spoiled the other side’s holidays:

Consider the perfectly timed restraining order, or the spontaneous motion for an order to show cause — or in fact anything that could bury the other side in research and paperwork the day before Christmas. Think about the possibilities for 11th-hour changes in the visitation schedule for the children — requiring canceled plane tickets and Christmas Eve court appearances. Or the last-minute effort to have a local crèche or tree deemed unconstitutional.

So Slate, for which Ms. Lithwick writes, is holding a contest in which lawyer-readers can submit “the meanest thing you’ve ever done to an opponent on the holidays”:

The best stories will be reprinted here shortly, and the Most Evil Attorney in the World will be showered with Slate paraphernalia. This contest is also open to anyone, anywhere with stories of hideous pre-holiday lawyer shenanigans, whether they were perpetrated upon you by counsel on the other side, by bosses in your law firm, or you merely heard about them from some sad-sack lawyer in a bar on Christmas morning.

All forced jollity aside, doesn’t this present bar authorities — forever fretting about the profession’s image — with a goal worth working toward, namely, find ways to revamp the practice of litigation to make such “hideous…shenanigans” rarer? (“Billable Horrors”, Slate, Dec. 13).

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Annals of overreaching legal fees

An appeals court in Missouri has ruled (Susan Mello v. Anita Davis and McDonnell-Douglas) that a lawyer who represented a client in an employment claim is not entitled to collect 35% of her client’s future salary and benefits by way of a claimed contingent fee. Best (if somewhat unsettling) quote from the court’s caustic opinion:

if it was Mello’s intent to have her client surrender 35 to 45% of all future earnings until the welcome hand of death freed her from this servitude, the contract needed to say as much.

(Via George Lenard, Dec. 9, who says the case “would be funny if it weren’t so sad”).

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Update: feds reindict in Mississippi scandal

“The federal government has indicted three defendants in a judicial bribery case for the fourth time, adding conspiracy to the list of charges against former Biloxi lawyer Paul Minor, former Circuit Court Judge John Whitfield and former Chancery Court Judge Wes Teel.” (Biloxi Sun-Herald; AP; Jackson Clarion-Ledger). In August, a jury acquitted state Supreme Court justice Oliver Diaz Jr. of all charges in the case, acquitted Minor and Whitfield of some charges, and was unable to reach agreement on the other counts against Minor, Whitfield and Teel. For our coverage, see Sept. 18, Aug. 17, Aug. 15, Aug. 11, etc. More legal woes for Minor: Julie Goodman, “Minor may lose bond following La. arrest”, Jackson Clarion-Ledger, Nov. 5 (federal prosecutors allege violations of Minor’s bail requirements after police charge him at crash scene “with operating a vehicle while intoxicated, failure to maintain control, driving without an insurance certificate and reckless driving. …The motorist in the other car, who subsequently hired an attorney, complained of back and chest pain, he said”); “Attorney in bribery case faces new bond conditions”, AP/Biloxi Sun-Herald, Nov. 8; “Judge to consult doctor who tested Paul Minor”, AP/Sun-Herald, Nov. 25.

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Don’t take that client!

Norm Pattis at Crime and Federalism (Nov. 21) describes a temptation felt by many trial lawyers during “the periodic lull in cases of merit”: taking on the cause of a vengeful, deluded or disturbed complainant:

You know the type. The injured, angry, pissed off, ornery cuss of a client who has been waiting, hoping, praying for a lifetime for someone to commit a tort, any tort will do, against them. Armed with this tort, this anger addicted fiend of a plaintiff will demand the scorching of any Earth within one thousand miles of their rubbed raw hangnail.

Will such a client find a lawyer willing to take his case? Very possibly he might:

Each year the bar belches forth a new class of lawyers; we add them faster than they die off. Lawyers need cases or controversies to survive. As the number of lawyers grows, plaintiffs’ lawyers reach ever deeper into the cesspool of human need to find clients. Is it any wonder that the courts are filled to overflowing with litigation that would better be treated with Prozac, Thorazine or some other radical therapy?

Lawyers should turn down such clients, Pattis says, and society should add its own discouragement:

I am a plaintiff’s lawyer. I am a successful plaintiff’s lawyer. But, perhaps this is too much to assert — I am an honest plaintiff’s lawyer. I favor as a matter of policy liberal rules requiring a plaintiff to pay sanctions for a claim brought without merit. A plaintiff who imposes unneeded expense on a defendant should reimburse the defendant.

And he follows that thought up with several other policy recommendations: “Liberalize the use of independent medical examinations for plaintiffs claiming emotional distress”, “Expand Rule 11 type sanctions on lawyers”, and “Make it easier for lawyers to withdraw when they discover that the client’s claims lack merit”. Even if you don’t usually follow the links in our posts, do it this time and read the whole thing. Update Jan. 8: Pattis responds to colleagues’ criticism.

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Update: Feds raid Fieger’s office in campaign laundering probe

Getting wilder by the week: “Federal agents raided the law office of Geoffrey Fieger late Wednesday looking for evidence that he laundered $35,000 in campaign contributions to the John Edwards 2004 presidential campaign through his employees.” (David Ashenfelter and Joe Swickard, “Federal agents raid Fieger’s office”, Detroit Free Press, Dec. 1). “A former associate in trial attorney Geoffrey Fieger’s firm said Friday that he and his wife each gave $2,000 to Democrat John Edwards’ 2004 presidential campaign on the promise that they would be reimbursed by the firm.” Joseph Bird, an attorney later fired by Fieger’s firm, “said he had ‘no clue’ at the time that it was illegal for employers to instruct people to give to a campaign and then reimburse them.” (Sarah Karush, “Lawyer says firm demanded political contributions to Edwards”, AP/Winston-Salem Journal, Dec. 2; same story with more details at Detroit News site, Dec. 4). For earlier evidence suggesting the likelihood of laundering in trial lawyers’ donations to Edwards, see Apr. 28-29 and May 8, 2003. For more on Fieger, see Nov. 17, Nov. 10 and links from there.

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Fieger blackmail allegations

Howard Bashman has full coverage, including links to transcripts, of Fieger’s alleged attempt to block an investigation into Fieger’s alleged campaign finance violations by revealing details of the attorney general’s extramarital affair (Nov. 10). Fieger allegedly spent $400,000 on a Michigan Supreme Court race without disclosing his spending. “Sandler, in statements to sheriff’s investigators, says Fieger warned he would pat down Sandler so he did not wear a listening device.”

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Shaw v. Jain

It’s not just plaintiffs’ attorneys who attempt to distract juries with irrelevancies. A Florida court of appeal has reversed a medical malpractice defense verdict in a case where the defense attorney made repeated reference to the plaintiff’s marijuana use—even though there was no evidence that that usage affected her injuries, treatment, or recovery. (Shaw v. Jain, No. 1D04-4178, Fla. App. Oct. 20, 2005 (via Conigliaro)).

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Jay Sekulow

Major investigative piece by Tony Mauro for Legal Times on “the leading Supreme Court advocate of the Christian right,” alleging that Sekulow has feathered his nest very nicely through the use of his American Center for Law and Justice, which in 2003 raised $14.5 million for its high-profile legal advocacy. Among the specifics: payments to Sekulow that are very high by non-profit standards, along with perks such as the use of a private jet, chauffeur-driven cars and several houses; jobs for his family members on the payroll; and circuitous routings of both donations and expenditures that have the effect of sanitizing ACLJ’s financial statements. “A review of publicly available tax and court documents, as well as interviews with several former employees, paints a stark portrait of Sekulow as a hard-charging man who emerged from bankruptcy and allegations of securities fraud in the late 1980s to build a complex network of personal, business, and nonprofit entities. At times, those financial dealings have alienated employees and been criticized in court.” They have also produced a backlash among many associates who believe that Sekulow’s handling of his organizations’ finances, which draw heavily on support by small donors, does not well exemplify Christian teachings. Vital reading (“The Secrets of Jay Sekulow”, Legal Times, Nov. 1). More: Mike Cernovich, Jeremy Richey, Legal Reader, Mike Airhart. And: Jonathan Rowe, Ed Brayton, Rob Huddleston, Radley Balko, Greg Prince; and welcome Andrew Sullivan readers.

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