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

June 17, 2005

ethical headaches

Filed under: pre-06-2006 — David Giacalone @ 9:16 pm



tiny check  A few days ago, Mike Cernovich wondered aloud [“eloud”] why

there has been no discussion by any of the blawgosphere’s 100+ law

professors (who enjoy academic freedom) of the case of Carin Manders

Constantine v. George Mason Univ. (4th Circ., June 13, 2005, No.

04-1410).   Constantine claims that she was discriminated against by

GMU’s law school, because it failed to accommodate her severe migraine

headaches — resulting in her failing Constitutional Law — and then was

relaliated against by the School, when she went public with her story. 

[Mike sets out Constantine’s basic assertions, which were taken as fact

for purposes of her appeal, but are somewhat vague and have yet to be



I would also like to know what law professors think about the issues

of student disability and free speech law were raised.  Not knowing

the actual facts yet should make it easier for the professors to opine —

offering hypotheticals — without fearing some kind of retaliation by their



One issue that I want to raise, however, is what Ms. Constantine’s   brainG

“intractable migraine syndrome” means for her ability to practice law

in compliance with Model Rule 1.3 on Diligence.  No law school should

decide that a particular disability would make it inappropriate to grant a law

degree to a student able (with reasonable accommodations) to complete its

course of study .  But, the existence of a disability should bear very directly

on what types of law a particular graduate (or veteran lawyer) chooses to

practice.  If stress triggers severe headaches, or such headaches occur often

and keep an attorney from meeting deadlines, the lawyer needs to make some

very hard choices.  Some kinds of law practice should be considered off limits

and, in some instances, clients may need to be informed of the issue.

  • Despite causing a financial disaster, there came a time eight

    years ago when I had to end my law practice — after cutting

    back significantly more and more for a few years — due to my

    health problems.  I could not in good faith hold myself out as

    being able to give diligent service to my clients.  I don’t think

    I deserve a pat on the back for doing so — it was my ethical

    responsibility, one assumed when I became a member of the


Thanks to the wonders of search engine technology, the name of

Carin Manders Constantine will be connected with her lawsuit and

migraine problems forever.  Googling her name already demonstrates

her “in[ternet]famy.”  Washington Post coverage, the 4th Circuit’s

decision and subsequent developments in the case, Associated Press

stories across the nation, weblog coverage, and many other internet

sources, will put many potential clients and employers on notice about

Carin Constantine’s condition.   Can we count on other lawyers with

serious “hidden” health problems, who do not come under an internet

spotlight, to make the right choices?  Or do we have to wait for a long

series of injured clients before a grievance committee takes action? 

I sure hope the lawyer’s oath will help our brethren make responsible


CMConstantine  Read more about Ms. Constantine’s interesting

life — e.g., she met her husband skydiving — here.



tiny check  I came to her post a week late, but I have to admit that I disagree

again with Carolyn Elefant’s complaint that a discipline committee treated

a solo unfairly and applied archaic rules mechanically.  This time, South

Carolina reprimanded attorney Theo Mitchell for calling his firm “Mitchell

and Associates,” notwithstanding that he he was the sole lawyer in his

licensed in the state.   Carolyn explains:

“Mitchell had contended that the use of the phrase

“and Associates” was appropriate because it referred

to other lawyers in Greenville who help him in specialty

cases such as real estate and foreclosure matters.”

“potladle” Carolyn says that modern practice and technology let a lawyer

“associate” with lots of other lawyers, in ways that benefit clients, so they

should be able to claim to have associates.  I’m sorry, but the touchstone is

whether a reasonable consumer would be deceived.   There is no doubt in my

mind that the average client assumes that “& Associates” means a lawyer who

owns a firm has hired and directly controls non-partner lawyers within the

umbrella of his or her firm.  Farming out work to other lawyers, or getting

email or blogwise advice from them, doesn’t count.    This isn’t even close.

When you have new kinds of affiliations, you need to find terminology

that adequately describe them — not co-opt terminology that has other

connotations and meanings and that just happen to make your firm seem

more substantial than it really is.


tiny check After seeing an article in yesterday’s NYT, John Steele wonders why jailbird neg

Long Island seems to have more than its share of crooked lawyers. 

Some of the answers where provided here last year, when similar

statistics came to light concerning the NYS Lawyers’ Fund for Client



EFFGuideN  Happy 51st Birthday to Bob Ambrogi of LawSites & More!  Bob

has a very useful pointer to For Freedom’s Sake, the Legal Guide for Bloggers,



“tinyredcheck”   Enough lawyer stuff!!  Here’s some great haiku from our

recovering — but, perhaps relapsing — lawyer-haijin. Barry George:




summer morning–
a hawk’s cry slips
in through the fan



hawk flight



a dandelion field
beneath this moon


Yellow maples–

the river gleams with sunlight
shaped like a cross








by dagosan: 

stooping to find

the dropped pill — 

the bachelor’s unwashed floor    


                          [June 17, 2005]       



                                                                                                                          hawk flight neg



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