Category Archives: Law: Ethics

‘Bar application denied for inability to pay law school debt’

It sounds horrible, and it almost is.

A former student directs me to this article in the Minnesota Lawyer, Bar application denied for inability to pay law school debt, which in turn leads one to the Ohio Supreme Court opinion in In re Application of Griffin, Slip Opinion No. 2011-Ohio-20.

The facts are almost as stated in the hyperventilating article: The applicant failed the bar three times, and applied to take it a fourth time. He passed the character and fitness scrutiny of his local bar association (often a formality), but the Board of Commissioners of Character and Fitness overruled that decision. The Board said that the applicant’s financial circumstances called into question his fitness to be a lawyer.

What seems to have bothered the Board is not simply the applicant’s debt but his failure to deal with it responsibly. Mr. Griffin had a large but hardly unheard-of $170,000 in student loans, of which $150,000 was for law school. But he also had $16,500 in credit card debt, and that debt has been delinquent since 2008; one creditor even has obtained a default judgment against him. He was working part-time at the Public Defenders Office, at $12/hour, hoping to land a full-time job if he passed the bar. Meanwhile, the credit card debt wasn’t being paid, and the strategy he planned was to consider declaring bankruptcy even though that would only clear up the credit card debt and not the student loans, which are not discharged in bankruptcy. That said, he hadn’t actually pulled the trigger on the bankruptcy, so the debt was still hanging over him and presumably accruing penalties and interest.

The article spins all this as the court deciding that law school debt keeps the applicant from becoming a lawyer, or that his decision to work part time at legal aid (in hopes of a permanent post after passing the bar) instead of getting a better paying, maybe non-legal, job, is the source of the adverse decision. How terrible to count this public-spiritedness against him!

Not so fast. The guy defaulted on the credit card debt two or more years ago. He didn’t work things out with the bank; he let one bank get a judgment against him. Lawyers quite often get into trouble by mishandling client funds either through inattention or through over-optimism that if they just borrow a bit from the client fund to tide them over, they can put it all back next week…. So while I don’t see this result as compelled, I can’t say the court is wrong to treat the credit card debt issue as a red flag. (The three bar failures don’t speak all that well for his organization either. Anyone can fail the bar once. Twice is bad.)

And note too that the Ohio Supreme Court doesn’t say Mr. Griffin can never attempt the Ohio bar again. They basically tell him to go clean up his affairs and then get back to them. That’s pretty mild.

Yes, passing the bar and getting a full time job as a lawyer would be one way to do that, and this decision blocks that option, so there is a Catch-22 element to the court’s offer. But I still don’t think it is unreasonable under the circumstances. Despite the Minnesota Lawyer’s take on the story.

Posted in Law: Ethics | 12 Comments

Is Academic Advantage a Scam?

Is Academic Advantage a Scam? Opinions may differ. You be the judge (assisted by Boing Boing and Google).

If correctly reported, their lawyers’ actions certainly appear to leave much to be desired.

Boing Boing has been on the receiving end of one or two stupid legal threats in our day but this one from the firm of Lazar, Akiva & Yagoubzadeh takes the cake, the little cake topper, the frosting and all the candles, as well as the box and the cake-stand and the ornamental forks.

Note too this comment about that by Jonathan Zittrain, not to mention other fine comments over at Boing Boing.

Update (1/21): Seems Academic Advantage fired their lawyers. See Company Fires Law Firm Because of Firm’s Unfounded Legal Threat on Company’s Behalf.

Posted in Internet, Law: Ethics | 3 Comments

Client-Driven Racial Quotas

Orin Kerr points us to an article at law.com:

In a pact brokered by the New York County Lawyers’ Association, more than 60 law firms have agreed to tell their corporate clients the composition of assigned legal teams by race, gender, ethnicity and sexual preference.

For several years, clients have asked law firms to sign statements in support of diversifying the legal profession. But with the formal agreement, firms have volunteered to put hard numbers behind their noble aspirations. According to the pact, “law firms should not object to requests by their corporate clients [to] report the number of hours devoted to the clients’ matters by minority lawyers.”

It’s nice that clients don’t want to employ either bigots or those who, even by lack of effort, have failed to overcome a legacy of discrimination.

But immediate consequences are clear, said Robert L. Haig, a partner at Kelley, Drye & Warren, one of the first large Manhattan firms to sign the agreement.

“When that number is put on the table and it’s a small number, then the great enthusiasm for diversity is a little suspect. The client might say, ‘We can’t hire you for the following year,’” Haig said in an interview. “Right then, that law firm is going to change. They’re going to do what they have to do in order to be retained again and again.”

He added, “This is economically driven, and that’s what makes it powerful.”

Haig, a former president of County Lawyers, the nation’s first bar association to admit minority attorneys, was one of about 30 attorneys who formed a County Lawyers task force on diversity. The effort was launched in 2000 and headed by Juanita Bing Newton, administrative judge of New York City Criminal Court and deputy chief administrative judge for Justice Initiatives at the Office of Court Administration.

But suppose the shoe were on the other foot? What if the clients wanted low numbers of minorities? Then we’d all be revolted. The parallel is far from perfect: excluding minorities is illegal and immoral; demanding their inclusion is legal and praiseworthy. But is the mechanism appropriate?  In general I’m in favor of people voting with their buying dollar to support suppliers whose values they share, and to avoid sellers with bad values even when they have good things to sell.

But I’m also instinctively uncomfortable with anything that smacks of racial quotas. Yet it is undeniable that law firms, especially big corporate firms, have not done everything they could to diversify. Some of the older troglodytes even seem to believe that the clients may harbor suspicions of minority lawyers.  So it’s nice to see pushback from the clients.

And yet.

[Original draft 5/13/2005.  As part of my blog redesign, I’ve been going through draft blog posts that somehow never made it to publication. This is one of them.]

2011: Subsequent research by one of my colleagues suggests strongly that big clients, at least, really couldn’t care less about diversity among their lawyers; big firm clients may talk a great deal in public about demanding it, but it doesn’t even show up on their general counsels’ list of important factors determining law firm choice when speaking in private.

Posted in Law: Ethics, Zombie Posts | Leave a comment

Can Lawyers Hire Folks to Pose As Law Students to Get Links to the Firm’s Web Site?

Here’s a real-life event that might make a good short-answer problem for a Professional Responsibility final exam.

Today I received an email purporting to be from a law student. The sender’s email address was [common-first-name]@edu-student-mail.org. The subject line was “Suggestion for your page [URL]” with the URL being a fairly obscure page from an Internet law seminar I gave in 1998.

Here’s the text:

Hi!

I came across your site today while doing some research on intellectual property for one of my law classes. You provide some really great resources, but on your page http://www.law.miami.edu/~froomkin/sem98/sem11.htm I tried to click on your link to http://www.eff.org/pub/Intellectual_property and it doesn’t seem to be working. I also found this page in my research which could provide similar information if you wanted to check it out 🙂 [here followed a URL to a site advertising personal injury lawyers that I’ve cut out to avoid rewarding this behavior].

Best,

[First-Name Last-Name]

I responded with an email asking what law school she attended. Haven’t gotten an answer.

Suppose, just hypothetically (we have no reason to believe this at present), that the name is a fake and this was in fact an advertising message for the California PI firm sponsoring the website in the message.

Is this (hypothetical) duplicity banned by the California legal ethics code? I’m not a member of the California Bar, so I don’t know the answer to this one. A cursory glance at Rule 1-400. Advertising and Solicitation. makes me wonder if there isn’t maybe a gap in the rules.

The California ethics rules prohibit making false statements to potential clients, actual clients, opposing parties, and the courts. They also prohibit false statements to third parties about cases in which the lawyer is involved. But there doesn’t seem to be anything about hiring an agent to make a false statement to a third party (me) designed to get (let us hypothesize) accurate publicity for the lawyer, that is a link to the firm’s site.

The rules do say, among other things, that

A communication [defined as: “any message or offer made by or on behalf of a member concerning the availability for professional employment of a member or a law firm directed to any former, present, or prospective client”] or a solicitation [“any communication: (1) Concerning the availability for professional employment of a member or a law firm in which a significant motive is pecuniary gain;”] (as defined herein) shall not:

(1) Contain any untrue statement; or

(2) Contain any matter, or present or arrange any matter in a manner or format which is false, deceptive, or which tends to confuse, deceive, or mislead the public

It doesn’t seem to me that, true or false, the email I quoted above qualifies as either a “communication” or a “solicitation” under these rules. So I have to think it is not covered.

But shouldn’t sleazy lying marketing designed to promote a website be as unethical as a lie to a potential client or lies on that website?

Maybe the person who sent that email was real. But even if she is, the gap in the rules this email made me think about may be real too.

(I’d welcome enlightenment from anyone more familiar with the California rules.)

[Original draft 2/2/10.  In preparation for my blog redesign, I’ve been going through draft blog posts that somehow never made it to publication. This is one of them.]

12/12/2010: Never did get an answer to my email.

Posted in Law: Ethics, Zombie Posts | Leave a comment

Ben Kuehne Vindicated!

Here's something to be grateful for: Feds drop money-laundering case against Miami lawyer Ben Kuehne.

Justice was done too slowly here. But at least it was done.

Posted in Law: Ethics | 2 Comments

Goverment to Only Do Business With Honest Contractors — Military-Industrial Complex Faces Doom

HuffPo(*) has the scoop, Whoops: Anti-ACORN Bill Ropes In Defense Contractors, Others Charged With Fraud:

The congressional legislation intended to defund ACORN, passed with broad bipartisan support, is written so broadly that it applies to “any organization” that has been charged with breaking federal or state election laws, lobbying disclosure laws, campaign finance laws or filing fraudulent paperwork with any federal or state agency. It also applies to any of the employees, contractors or other folks affiliated with a group charged with any of those things.

In other words, the bill could plausibly defund the entire military-industrial complex. Whoops.

Rep. Alan Grayson (D-Fla.) picked up on the legislative overreach and asked the Project on Government Oversight (POGO) to sift through its database to find which contractors might be caught in the ACORN net.

Here's the Project of Government Oversight (POGO) federal contractor misconduct database. And POGO has more; meanwhile Rep. Grayson is asking for people to crowdsource his list of companies caught by the rule. According to Huffpo,

Grayson then intends to file that list in the legislative history that goes along with the bill so that judges can reference it when determining whether a company should be denied federal funds.

All this because naming ACORN in the legislation creates a risk that the statute might be a bill of attainder.

This is an amazingly brilliant if impractical idea given the level of corruption in military and doubtless civilian procurement (sort of super-debarment for those versed in procurement law), but we all know it will never survive the legislative sausage factory.

(*)-Employs family member.

Posted in Law: Ethics | 4 Comments