Tuesday, June 20, 2006

Some Interesting Things From The Week That Was

Well, as expected, there was barely time to read the paper and the blogs much less write for you all. I had a great time at Colonial Inauguration while at The George Washington University. I have to admit Orientation has come a long way since I went to college (for example Freshman no longer have to wear beanies.) Any way GW put on quite the show. A lot of information, comradery, and entertainment. I especially enjoyed President Steven Joel Tractenburg's welcome to the class of 2010. I think my son will be very happy here.

As for the "News" this week, I guess the lead off story would have to be the SCOTUS decision in Hudson v. Michigan. Contrarian that I am, I will end this post with some thoughts on that. First a few words of advice to lawyers about a couple of Ethics cases.

I. Beech v. Lefcourt: Can an Attorney be forced to return a collected fee for failure to obtain a retainer agreement or send a letter confirming same?

First there was the civil court decision (found here)in Beech v. Lefcourt which, while not binding is a very sound decision and one that I hope will be followed. It deals with how we should handle the failure of an attorney to have a retainer letter in a case.

Mr. Beech retained the well-known and highly regarded Gerald Lefcourt to represent him in Nassau County on a Drug charge. The Fee paid was Fifteen Thousand Dollars. There was some question as to whether the fee was for representation or remaining available to consult on the case presumably with local counsel.

Beech sought return of the funds because Lefcourt did not give him a written retainer as is required by 22NYCRR Sec.1215.1c. The court held that while the defendant (in this case Mr. Lefcourt) could not sue to obtain his fee, he did not have to return any of the fee already collected. This case appears to be a case of first impression. There are a number of cases that have held that sans a retainer letter or agreement a lawyer cannot collect his fee or any unpaid portion thereof, there was no decision as to whether 1215.1c required forfeiture for sums already submitted. This is not to say that the plaintiff could not try to recover the sums as part of a quantum meruit recovery but 1215.1c will not act as an opportunity for a windfall for the plaintiff.

A fair moral for this story is...get a retainer letter signed by the client or at the very least send a letter of engagement so you're covered. That is not to say that sometimes things fall through the cracks. Which leads us to case two:

II. In the Matter of Aranda: Failure to tell client attorney has "blown" his Statute of Limitations causes 1 year suspension.

Lessen two for lawyers comes at the expense of a small firm practioner who was spread too thin. The attorney in Matter of Aranda (First Dept decision here)has made a career of taking on the hardest litigation, on behalf of a truly legally underserved community in Washington Heights in upper NYC.

Aranda evidentially had let too many things fall through the cracks and had neglected a client's case for false arrest letting the statute of limitations run. He also failed to tell the client that the statute had run. While handling this matter, Aranda was also securing the release of one of NY's innocent convicted, Olmedo Hildago (case synopsis here.)

At his hearing, Aranda took responsibility for some of the problems in the office but also complained of some problems with help and staff. The referee recommended a year suspension. The Grievance counsel wanted an 18 month suspension. A hearing was held before the grievance committee and the committee recommended a 5 month suspension as this was not a first offense. The court upheld the committee's dismissal of two counts of the complaint and then sentenced to 1 year's suspension anyway. What I found most disturbing is that they reached back almost 17 years to some really early discipline to make their case for the longer suspension. There was little proof that the Appellate Division First Department looked at the accused attorney's record or considered the substantial amount of support the individual had from jurists, clients, fellow lawyers or even a legislator. If I were on the committee that had ordered five months suspension I would be pretty ticked off too.

I think the better way to handle the discipline of attorneys would be to have the courts appoint the committee, have the committee hold the hearing and only disturb the hearing committee's decision if it were an abuse of discretion. It has got to be difficult for judges of the Appellate Division to remember the hard times of practicing law. They have usually been judges for so long it isn't easy to put oneself back in that venue (assuming they ever did practice law in a firm or private bar setting.) Moreover, even if they can remember and empathize, the economics and culture of the private law practice has changed so dramatically that they are out of touch with it. A practioner's panel is better suited to determine the punishment necessary to correct the behavior. I also think that the question of whether the lawyer carried malpractice insurance should be part of the equation. If the client can still be made whole then that should dampen any punishment.

I doubt the court would ever voluntarily give up the power to punish the behaviors of attorneys but the rule ought to be changed. Maybe there is a legislator who would put a bill in that may get the court's attention. Maybe it will be the Assemblyman who testified and who was ignored by the court's decision.

III. App. Div. Chiefs call for comment on new rules concerning Internet and personal injury advertising.

The Presiding Judges of the Four Appellate Divisions have promulgated a slew of new disciplinary rules to govern attorney advertising and solicitation. You can find the new rules here. Most of the rules mirror those proposed by the State Bar Task Force on Lawyer Advertising and Solicitation aka the Lieber committee.

The proposals are far reaching, and concern everything from the length of time attorneys must keep their advertising to coverage of attorney's from outside the state who solicit clients within the state. It forbids the use of certain trade names and advertising ploys such as paid testimonials and endorsements.

I have given these rules a tertiary review and find them objectionable in a number of ways.

1. I think the waiting period for soliciting a client in a tort is way to long. In 30 days (the amount of time the attorney must wait to solicit a tort client)the insurance company can inflict major harm to the client's case. Without quick contact by a lawyer, a client may sign a statement that is not phrased in his interest or may be inclined to sign a waiver of claim or even a settlement. Many tort clients are poor and uneducated. They are far more open to being coerced or unfairly pushed by unscrupulous insurance adjusters to settle a case before an attorney can get to them or they to an attorney. A five or seven day wait is far more reasonable and will stop the client from being overwhelmed in most cases.

2 a Three year waiting and holding period is again to long a period to have to hold on to your ads. Especially since our websites change daily with news feeds or newsletters. The rules seem unclear if I have to print out the links to my news feed or if I just need to print the feeds themselves. Nevertheless this will still force me to hold onto 800 pages of paper a year. What about a lawyer's blog? Do I have to copy and keep every page of it. Not only is that a waste but it is shows the court is not acquainted with the concept of cache copies.

3. The court wants us to hold onto the lists of all of those who are solicited along with a copy of the individual solicitation. This seems to be an attempt to control spamming clients. It is not on its own a bad idea. However what about if the list of those solicited includes people involved in a bad act or in other risqué business that they ultimately are never prosecuted for? How are we to be assured their "business dealings" or names will not be revealed to authorities?
What effect would an e-mail from a criminal lawyer do to them if the authorities found out they were being made aware of the lawyer's availability.

I may have more on this after I have had a chance to digest the document further.

IV. Hudson v. Michigan:Wither the Knock and Announce Rule?"

There is a lot of hand wringing and fear being bandied about on this decision which holds that exclusion of evidence is too harsh a remedy in a situation where the police have a warrant to search a place but fail to wait the right amount of time before forcibly breaking into a person's home. AP handles the decision

Professor Orin Kerr has a number of posts here,here, and here. An even more thorough analysis is found at SCOTUSBLOG here The discussion in the comments also are very though provoking. BTW you can link to the actual decisions here.

I think this decision is a tempest in a teapot right now. Sure it can be seen as if it portends more chipping away at the exclusionary rule but for the reasons Prof. Kerr points out it is not out of whack with the courts recent rulings on suppression issues and it does preserve the right to suppression in other Fourth Amendment settings. I also think Scalia and Kennedy's decisions will go a far way in getting better instructions in 1983 actions.

That's all for now.

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