There were a number of legal ethics stories in the news last week that are too interesting to ignore, despite my having a lot of other things on my mind. So, they’re getting the q.s. (quantum satis) treatment this afternoon:
Jackasses & Schmucks: It’s rather easy to become annoyed with attorney Jack Kevorkian’s feisty former lawyer Jeffrey Feiger. And, I can understand why he enraged judges (and embarrassed lawyers) in Michigan, when he referred to state appeals judges as jackasses in a radio interview and compared them to Nazis. His words got him disciplined under Michigan legal ethics rules that require lawyers to treat those involved in the legal process with “courtesy and respect” and bar “undignified or discourteous conduct” toward judges.
The f/k/a Gang is unanimous, nonetheless, in agreeing with U.S. District Judge Arthur Tarnow of Detroit, who ruled last week that the rules violate the First Amendment because they are overly broad and vague. [See ABAJournal NewsNow, “MI Lawyer Courtesy Rule Overturned“; and Associated Press, “Judge Sides With Ex-Kevorkian Lawyer“, Sept. 5, 2007] Feiger’s lawyer Mike Dezsi stated after the decision that “All lawyers should rest easier, knowing they are not going to be disciplined for criticizing or speaking out against judges.” (David Nieporent dissents at Overlawyered.com in “Federal court: Fieger can call judges Nazis,” Sept. 7, 2007; his colleague Ted Frank concurs) As the AP story notes, “Contempt rules still apply, meaning lawyers can’t say something outside court that could affect a case.”
Last April, we defended Raul Felder’s right to write the book Schmucks! (with Jackie Mason) without being censured by the NYS Judicial Conduct — see Dignity Police censure Felder for penning Schmucks!, where we noted that Felder wrote the New York Times op/ed piece Two-Fisted Lawyering: “I’m Paid to Be Rude” (July 17, 1997), dissenting to Chief Judge Kaye’s push for a code of civility for New York lawyers.
it’s not swearing
it’s the only language
those cows understand
long summer day
a hawk holds its place
between the clouds
midday sun
the silence of swimming
under water
………………. by DeVar Dahl
“it’s not,” “my best moos” & “midday sun” – A Piece of Egg Shell (Magpie Haiku Press, 2004)
“long summer day” – New Resonance 3; Presence 15
empty bottle
a few words
I would like to take back
their laughter
is not about me
but would sound
just like that
if it was
……………………… by John Stevenson
“empty bottle”& “their laughter” – Quiet Enough (2004)
on the face
that last night called me names
morning sunbeam
the son who
argues everything
I study his face in a puddle………………………………………. by George Swede – Almost Unseen (2000)
Frisch Off the Presses: The Legal Profession Blog ‘s Mike Frisch (who is Ethics Counsel at the Georgetown Univ. Law Center, and whose views on “the failure of lawyer self-regulation” sound a lot like ethicalEsq) does a great job every week of covering the kinds of stories that ethicalEsq used to do back when this weblog was young — about the inadequacies, foibles and excesses of the legal discipline system. For example, here are three he pointed to last Friday:
In “Jailhouse Lawyering Not Unauthorized Practice” (Sept. 8, 2007), Mike reported: “The Ohio Supreme Court, in a 5-4 decision, dismissed a complaint of unauthorized practice of law against a prison inmate who is serving a lengthy sentence. The Supreme Court Board on the Unauthorized Practice of Law found that the prisoner had ‘conducted legal research, offered legal advice, and prepared and signed legal documents on behalf of many other inmates.’ The majority opinion notes the futility of imposing sanctions as the threat of contempt will likely not deter an inmate who may never secure his release. An opinion concurring only in the result aptly notes: ‘the UPL Board’s interest in regulating the legal profession is overridden by the need for prison inmates to have help in obtaining access to courts’.”
Click for the Court Summary: Court Dismisses Unauthorized Practice Complaint Against ‘Jailhouse Lawyer’ and the full Opinion (2004-1130. Disciplinary Counsel v. Cotton, 2007-Ohio-4481)
I don’t have to, but I want to, point out that the members of the Ohio bench and bar seem to have quite an itchy trigger finger, when it comes to taking aim at culprits they feel are encroaching on lawyer territory. See our coverage, for example, in “UPL and the Ohio Lawyer Guild” (where the Cleveland bar went after a father who successfully represented his son in a special education case) and “ Living Will UPL?” (where Lancaster lawyer Frank W. Green filed a UPL complaint against nurse Karen Phillips for leading a seminar on Living Wills at the Fairfield Medical Center in Lancaster). Ah, yes, Ohio: Where consumers are protected from the ugly sight of lawyers competing for their business and the horrors of solving their legal problems without paying lawyers.
winter sun begins
to warm the steering wheel—
prison visit day
restored prairie . . .
where the grasses end
the prison’s outer fence
another Christmas . . .
my parents visit
the son in prison……………………… by lee gurga from Fresh Scent (1998)
In “Pressing Claim Without Evidence Violates Rule 3.1” (Sept. 7, 2007), Mike tells us about the Connecticut case Max F. Brunswick v. Statewide Grievance Committee (AC 27629, Sept. 4, 2007; 17 pp pdf.). Max “represented a client in an arbitration matter that resulted in an adverse decision. At the client’s insistence, he filed a motion to vacate alleging fraud, corruption or undue means on the part of the arbitrator. Thereafter, he persisted in pressing the claim despite the failure of the client to produce evidence to support the contention.” I am happy to report that Bar disciplinary charges were brought for instituting or maintaining a frivolous claim in violation of Rule 3.1 and that the Connecticut Appellate Court affirmed the finding of misconduct — as Mike explained, “the lawyer crossed the line by not withdrawing the contention after the client had refused to provide a promised affidavit.” See our prior post on a similar subject, “Lawyers Liable for Continuing a Bad Case” (April 20, 2004)
Sun-scorched slope–
an old donkey rubs his rump
against a mud-crusted postApproaching storm…
a black colt in the meadow
snorts against the windlate fall–
my echo calling
the dogafternoon warmth –
the reflections of horse heads
in muddy trough water……………………… by Rebecca Lilly – Shadwell Hills (Birch Prees Press, 2002)
“afternoon warmth” & “late fall” – The Heron’s Nest V:2
Finally, in a post titled “Lawyer-To-Lawyer Advertising” (September 7, 2007), Frisch tells us pithily that “The Florida Bar News reports a recent decision by the Bar’s Board of Governors that lawyer-to-lawyer advertising must comply with the Bar’s general advertising regulations. The Board also voted in favor of a ‘moratorium on enforcing the rules on lawyer-to-lawyer ads’ while it seeks clarification from the Florida Supreme Court.” Taking a look at the article in The Florida Bar News (Sept. 1, 2007), however, I discovered that the Florida Bar (often the object of scorn here at f/k/a for its overzealous role as Dignity Police; see, e.g., the 800-PIT-BULL case) did not voluntarily decide that it should suddenly monitor the brochures and other advertising aimed at lawyers. Instead, the Supreme Court on its own let the bar know that it did not agree with a long-standing Comment in the discipline code that said advertising regs would not apply to either lawyer-to-lawyer ads or to advertising that is aimed at current or former clients. The article notes that “The board’s action, if eventually enforced, could have a great impact on lawyer-to-lawyer ads and communications sent to former and current clients.”
Take a look at the hang-wringing suggested in the Bar News article. And, ask yourself — as we did in our post last January reviewing the proposed NYS lawyer ad rules last January — why, when Model Rule 7.1 doesn’t make that distinction, state bars would want to require lesser standards for communications to existing clients or other lawyers.
afternoon warmth –
the reflections of horse heads
in muddy trough water
……………………… by Rebecca Lilly – The Heron’s Nest V:2