Herewith, my highly subjective choices for top professional responsibility stories in 2009.
Indiana and Its Environs
- Federal court judges in the news. This is the feel-good story of the year with little to do with professional responsibility. I mention it to inoculate my readers from the impact of some of the stories to follow. Former Chief Judge of the U.S. District Court for the Southern District of Indiana David F. Hamilton was President Obama’s first federal court nominee. (Cue the partisan political wrangling.) After having him twist in the wind for most of the year and after a very close cloture vote to end a Republican filibuster on his nomination, Judge Hamilton was confirmed by the Senate on a party-line vote of 59-39, with only Senator Richard Lugar breaking ranks and voting for his home-state nominee. Judge Hamilton joins Judges Michael Kanne and John Daniel Tinder as the Hoosier representatives on the eleven-judge Seventh Circuit. Kenneth Ripple and Daniel Manion of Indiana remain of service to the court as Senior Circuit Judges.
Judge Hamilton’s elevation and Judge Larry McKinney’s move to senior status and the late Northern District Judge Allen Sharp’s move to senior status before he died in 2009 leaves Indiana significantly short-handed on the federal bench. As of this writing, all three federal judgeships were without nominees to fill the vacancies.
- What’s it worth? While the Indiana Supreme Court largely speaks with one voice on lawyer discipline violations, 2009 represented was another year in a trend toward increasingly polarization on the appropriate level of discipline. This past year, the Court entered final orders of discipline in 70 cases submitted on hearing officer findings or conditional agreements for discipline. The Chief Justice and Justice Dickson dissented most often on the basis that the majority’s sanction was too lenient. The Chief Justice expressed that view in 7 cases and Justice Dickson in 6 cases. In no cases did either opine that a sanction was too harsh. On the other hand, Justice Boehm dissented in two cases that the majority’s sanction was too harsh, and Justice Rucker expressed that view in one case. Justice Boehm did not dissent in any case on the basis that the sanction was too lenient, but Justice Rucker did so in one case. Justice Sullivan tended to be the swing vote. He dissented twice on the basis that a sanction was too lenient, and never on the basis that a sanction was too harsh. He also dissented in one case on the merits, disagreeing with a four-justice majority that the respondent lawyer had not violated the Rules of Professional Conduct. See Matter of Recker, 902 N.E.2d 225 (Ind. 2009). In 15 cases, at least one justice was in dissent, once (Sullivan) on the merits and the rest on the appropriate level of sanction. Five cases had two justices in dissent on the appropriateness of the sanction. In four, the dissenters thought the majority’s sanction was too lenient, and in one the dissenters thought the majority’s sanction was too harsh. In two cases decided on the same day, two justices (the Chief Justice and Justice Dickson) were in dissent in one case because the sanction was too lenient, Matter of Perry, 913 N.E.2d 191 (Ind. 2009), and in another two justices (Justices Rucker and Boehm) dissented because the sanction was too harsh, Matter of Fulkerson, 912 N.E.2d 822 (Ind. 2009).
- Whither the trade name prohibition? In Matter of Loomis, Grubbs and Wray, 905 N.E.2d 406 (Ind. 2009), the Court affirmed its long-standing position that the rules mean what they say—Indiana lawyers may not practice under a trade name—a prohibition in Rule of Professional Conduct 7.5(b). In the case of these three lawyers, the trade name was Attorneys of Aboite, after a township in Allen County.
Will this prohibition live to see another year? On November 30, the Supreme Court Committee on Rules of Practice and Procedure posted various proposed amendments to the advertising and publicity rule for comment, including a proposed amendment to Prof. Cond. R. 7.5 that would allow practicing law under a trade name so long as the name is not false or misleading or otherwise does not violate the specific prohibitions found in Prof. Cond. R. 7.2. Any trade name must include the name of at least one current, retired or deceased lawyer associated with the firm or a predecessor firm. I will comment in more detail on the proposed advertising amendments in a future column. Lawyers may comment on the proposals until March 1, 2009. Details are available here: http://www.in.gov/judiciary/rules/proposed/2009/november.html.
- Ohio shows leadership on unauthorized practice of law. Whither Indiana?
The Ohio Supreme Court has been a leader in addressing the unauthorized practice of law by companies that market living trusts, usually to older people. See Trumbull Cty. Bar Assn. v. Hanna, 80 Ohio St.3d 58, 684 N.E.2d 329 (1997). In a stunning October 14 decision, the Ohio court ordered supplemental injunctive relief and civil penalties of $6,387,990 against American Family Prepaid Legal Corporation and other individuals and entities associated with it for violating a 2003 consent decree from an earlier action to enjoin its unauthorized practice of law. The amount was calculated by multiplying the $1,995 purchase price for its services by the 3,202 post-consent decree customers. Columbus Bar Association v. Am. Family Prepaid Legal Corp., 123 Ohio St.3d 353, 2009-Ohio-5336, 916 N.E.2d 784 (2009).
It will be worth watching whether the Indiana Supreme Court follows suit in 2010. On December 22, 2009, our high court heard oral arguments in State ex rel. Indiana State Bar Association v. United Financial Systems Corp., No. 94S00-0810-MS-00551, an original action seeking injunctive relief against an Indiana-based company that markets living trusts. Of special note was the Court’s order setting the case for oral argument: “The court informs the parties that it will issue an opinion in due course in favor of the relator on the merits of its claim of unauthorized practice of law. Oral arguments will therefore be limited to the following issues: (1) disgorgement of fees charged for unauthorized practices; and (2) payment of attorney fees incurred by the relator.” We should look forward to an important decision identifying the parameters for non-lawyers in this important area. The Court’s position on disgorgement should provide insight into how strong the disincentives will be for companies to encroach on the practice of law.
- Don’t Red Spot Paint me, bro’! In an Evansville environmental clean-up case, U.S. District Judge Larry J. McKinney laid down the law in a June 5 discovery sanctions order. 1100 West, LLC v. Red Spot Paint & Varnish Co., Inc., 2009 WL 1605118 (S.D. Ind. June 5, 2009). 1100 West demanded that Red Spot produce records about any use of particular chemicals in their manufacturing processes. Resolving the discovery dispute and 1100 West’s request for sanctions against Red Spot, Judge McKinney found the discovery violations so egregious as to warrant a default judgment on the merits in 1100 West’s favor, leaving only the amount of damages for future proof.
Further, he ordered that 1100 West be compensated for its attorney fees and costs for more than three years of discovery. But here’s the kicker: he ordered that the law firm representing Red Spot, Bose McKinney & Evans, LLP, not just the Bose lawyers working on the matter, pay half of the sanctions. In language that ought to be posted by the coffee pot in every Indiana law firm, Judge McKinney stated: “The Court notes that it may be unusual to sanction a law firm for conduct that violates the Federal Rules of Civil Procedure. However, in this case, where three partners of the firm had knowledge of its client’s apparent disregard for those rules and failed to properly supervise an associate and paralegal who had knowledge of adverse facts that remained undisclosed to the opposing party, the Court can only conclude that the firm must be held accountable under its inherent authority to deter such conduct in the future…. The Court concludes that Red Spot’s conduct can only be described as contumacious, wilful, and egregious. [Bose] compounded the problem by, like a chameleon, becoming indistinguishable from its client and allowing Red Spot … to evade the truth.” Id., slip op. at 62-63. It was later reported that Bose entered into a settlement with 1100 West to resolve its portion of the sanctions award.
Nationally, with a Local Twist
- Supremes decide judicial campaign contributions recusal case. On June 8, the Supreme Court decided the much anticipated case of Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868, 129 S.Ct. 2252 (2009), in a 5-4 decision written by frequent swing voter, Justice Anthony Kennedy. In brief, the case held that it violated due process when a justice on the West Virginia Supreme Court failed to recuse himself in light of the fact that he had accepted recent, substantial campaign contributions from Massey’s CEO. The Court held that it didn’t matter whether the justice was actually biased. The standard to be applied is an objective one: whether there is a reasonable risk of actual bias or prejudice under all of the circumstances.
The ramifications of Caperton are decidedly uncertain. For example, two of our Midwestern neighbors with elected supreme courts have approached it differently. The Michigan Supreme Court, by a 4-3 majority, adopted a rule that incorporated the Caperton standard for recusal, with the additional procedural protection of allowing a party aggrieved by non-recusal to seek review by the entire court. By contrast, in October, the Wisconsin Supreme Court, by an identical 4-3 majority, adopted a petition to amend the state’s judicial code to provide that the receipt of campaign contributions from a party in a proceeding before the court cannot be the sole reason for a judge to recuse him or herself. But in December, the Wisconsin court seemed to temporarily back down when one justice withdrew his earlier vote, albeit for seemingly technical, not substantive, reasons.
I have previously stated my own views that Indiana’s system for selecting our appellate judiciary is far superior to the unseemly and resource-wasteful judicial elections of other states. For more background, see Lundberg, Dancin’ With Them What Brung Ya: Electing Appellate Judges, Vol. 52, No. 7 Res Gestae 31 (March 2009).
- Law practice economics, poor legal employment prospects and an Indiana law prof.
The economy is still in the tank for most folks, and with it, large segments of the legal job market. In 2009, many law firms jettisoned personnel at a furious pace. Most lawyers—the ones who were employed—felt the bad economy in their pocket books. And if you were a new law grad? Fahgettaboutit! It wasn’t just bad, it was a blood bath. There’s no telling when the market for lawyers will be robust enough to absorb the newly minted esquires who are backed up in the legal employment pipeline. This is the worst I’ve seen it in 33 years of practice.
In the face of this economic adversity, Maurer School of Law Professor William Henderson (and a licensed Indiana lawyer) has become one of the leading go-to guys for analyzing the state of the legal economy. Heavily quoted in the mainstream press and the legal blogosphere, Bill’s commentary has been cogent and insightful. In September, the ABA Journal named him one of its “Legal Rebels” who are remaking the profession.
- Catch and release–federal prosecutors gone wild. No way around it, 2009 was flat-out a bad year for the Justice Department. To cite three high profile examples, Attorney General Eric Holder requested a federal judge to dismiss the corruption conviction of Alaska Senator Ted Stevens on grounds that federal prosecutors failed to disclose potentially exculpatory evidence to the defense. In November, a federal judge dismissed the stock option back-dating case against several Broadcom executives because prosecutors improperly pressured witnesses to testify favorably to the government’s case. And just coming in under the wire, on December 31, a federal district court judge dismissed the government’s indictment of several employees of Blackwater Worldwide (now known as Xe Services) for charges arising out of an incident in Baghdad, Iraq, in which a number of civilians were killed and wounded. The grounds for dismissal were that prosecutors made unconstitutional use of compelled statements given by the security guards in the aftermath of the shooting.
- Cash for kids–judges gone wild. In what gets my vote for the single-most disheartening legal story of 2009, two Luzerne County, Pennsylvania judges with juvenile jurisdiction face criminal charges for allegedly grabbing $2.6 million in kickbacks from private juvenile detention centers as payola for ordering kids to be detained in there. The kickbacks were made on a per capita basis, if you can believe that. If true, I can’t think of a more cynical abuse of judicial power. The kids and their families have filed a civil suit damages against the judges. Will the strong protections of absolute immunity for judges acting in their judicial capacities extend so far as to protect these judges from financial accountability for their conduct? That remains to be seen.
- The torture memos live on. The legal memoranda authorizing the use of enhanced interrogation techniques during the administration of George W. Bush continue to be a flashpoint for debate about whether government lawyers stand in the same relationship to their clients as other lawyers or whether they have special responsibilities as servants of the people who elected their bosses. Among events in 2009 keeping the so-called torture memos on the front burner were:
The Justice Department’s release of the memos themselves in the spring.
In 2008, Jose Padilla, an enemy combatant who was alleged to have been tortured, filed a civil suit for damages against John Yoo, a former Deputy Assistant Attorney General in the Office of Legal Counsel, to whom primary authorship and much of the theoretical underpinnings of the torture memos are attributed. In 2009, the district court denied Yoo’s motion to dismiss and the matter is now on interlocutory appeal to the Ninth Circuit.
On November 27, a group called “Disbar Torture Lawyers” filed lawyer discipline complaints in the jurisdictions where they are licensed to practice law against Yoo, current Ninth Circuit Judge Jay Bybee, who was the Assistant Attorney General in charge of the Office of Legal Counsel when the torture memos were written, and others.
There was continued agitation in 2009 for the University of California at Berkley School of Law (Boalt Hall) to fire Yoo, who is oddly enough a tenured member of the faculty there, of all places, raising other provocative questions about academic freedom and the value of tenure.
Meanwhile, the Department of Justice’s Office of Professional Responsibility has been conducting an investigation into the creation of the torture memos for about five years. Attorney General Eric Holder recently testified before Congress that the report would be complete by the end of the year, but it wasn’t.
Join me in looking forward to a 2010 marked by enough controversy to keep lawyers fully employed, but without the rancor that makes their lives miserable.
[DRL1]Was this published in F.Supp. or F.R.D.?