Wednesday, November 01, 2006

from legal blog watch

Legal Blog Watch

For These Lawyers, It's 'Trick or Dupe'

"Trick or treat" is the theme of the day, but for three Massachusetts lawyers recommended for discipline earlier this month, the state Board of Bar Overseers found their modus operandi to be "trick or dupe." The case is surprising both for the prominence of the lawyers and the outrageousness of their conduct.

As The Boston Globe reports, the Bar Overseers recommended the disbarment of lawyers Gary C. Crossen and Kevin P. Curry and the suspension of Richard K. Donahue. Donahue is a former chairman of the very board that voted to suspend him and a prominent member of the bar. Over the course of his career, he has been assistant to President Kennedy, president of Nike Inc. and president of the state bar. Crossen is a former assistant U.S. attorney and former state prosecutor. Curry is a former state prosecutor.

The three lawyers participated to various extents in an elaborate scheme to get information in a case from a law clerk to former state judge (and now TV judge) Maria Lopez. As Globe reporter Charles Radin recounts:

The lawyers, who all worked at various times for the losing side in the case, engaged in an elaborate scheme to get information from Lopez's law clerk, Paul Walsh, to provide information that would allow them to discredit Lopez and invalidate the judgment. ... The men first enticed Walsh with a bogus offer of a dream job, then threatened to harm his career if he did not cooperate with them.

The Bar Overseers' report, issued Oct. 16, sums up the lawyers' actions this way:

The whole point of the phony-job ruse was to 'trick or dupe' Walsh into making statements he 'otherwise would not have made.' This was because the premise of the respondents' dealings with Walsh was their expectation that he would not disclose, in violation of his obligations as a clerk, confidential communications with a judge unless he were seduced by an offer he could not refuse. Hence the dream job, the meticulous arrangements to make it seem real, the fancy hotels, the cash, the limousine service. ... When blandishments failed, Crossen and Donahue resorted to the threats to make public Walsh's statements and the bar letter.

The board's recommendations now go to the Supreme Judicial Court for review.

Posted by Robert J. Ambrogi on October 31, 2006 at 12:08 PM | Permalink | Comments (0)

Will Punitives Go up in Smoke?

From corporate boardrooms to PI law offices, all eyes today are on the Supreme Court, which hears arguments in Philip Morris USA v. Williams on the extent to which punitive damages can punish a tobacco company for "highly reprehensible" conduct and for the effects of its conduct on non-parties. It is a case, writes Lyle Denniston at SCOTUSblog, that "pits familiar gladiators debating broad cultural questions over whether and how to make Big Tobacco pay."

At issue is a punitive damages award of $79.5 million to the Oregon widow of a Marlboro smoker. Supreme Court observers such as Denniston and Legal Times reporter Tony Mauro agree that the outcome of the case may turn on the votes of the court's newest members, Chief Justice John G. Roberts Jr. and Associate Justice Samuel A. Alito Jr.

The case is significant on multiple levels. Mauro writes that it could be a watershed in tobacco litigation:

The case ... marks a major milestone in the decades-long litigation battle against big tobacco. For the first time, the justices will have before them evidence of tobacco-industry misbehavior drawn from the 35 million documents pried from company files in Minnesota's 1990s lawsuit against the industry. Included are decades of statements from tobacco company executives, scientists, and lawyers acknowledging the dangers of smoking and strategizing ways to keep customers hooked.

NPR legal affairs correspondent Nina Totenberg says today that the case "is the ultimate test of whether the Constitution imposes significant limits on punitive damages in each and every case of misconduct." She continues:

On any scale of reprehensibility, the conduct of the tobacco industry is right up there at the top. The question in this case from Oregon is: How much freedom does a state have to assess damages in an individual case involving reprehensible conduct?

In an editorial today, the New York Times answers that question in favor of allowing state juries loose rein.

The purpose of punitive damages is, the Supreme Court has noted, 'punishing unlawful conduct and deterring its repetition.' In cases of extremely bad conduct, particularly when a defendant is large and willful, a bigger award may be necessary. In this case, $79.5 million does not strike us as unreasonable. Nor do we see any basis for holding that this jury verdict, affirmed in a thoughtful decision by Oregon's highest court, is a denial of Philip Morris's due process rights.

Today's oral arguments may foreshadow the eventual outcome. In the meantime, Legal Times offers a preview of each side's arguments in a set of dueling opinion pieces written by lawyers who filed amicus briefs: Too Much? Yes and Too Much? No.

Posted by Robert J. Ambrogi on October 31, 2006 at 12:04 PM | Permalink | Comments (0)

Shingle-Minded Devotion

Carolyn Elefant is hanging tight to her shingle. The founder of the blog MyShingle.com (and my co-blogger here at Legal Blog Watch) says she could care less if some lawyers believe hanging out a shingle is out of style -- she'll take substance over form any day:

I love running MyShingle, but I'll always be a practicing lawyer, first and foremost.  And that's why I favor the solo and practice blogs that aren't form over substance or full of jargon but those that teach me, by example, how to practice law and deliver legal services to my clients better, faster and less expensively.

What's got Elefant defending her domain? It's "third wave" lawyer Chuck Newton, who writes on his blog that it's time to "give the whole shingle metaphor a rest." Says Newton:

I am just not sure that I like the term 'hanging out a shingle.' I know it is insider slang that is shouted out by the plaintiff-crips and the defendant-bloods that means going into practice for yourself. I am all for getting your 'law dog down,' but it just seems that phrase is so-o-o-o-o-o last millennium. It is almost Amish-speak.

Rather than a shingle-hanger, Newton calls himself and his ilk Third Wave lawyers. Inspired by futurist Alvin Toffler's book, "The Third Wave," Newton offers a manifesto of sorts:

We work from our homes or from cubicles or small shared offices free from the confines of standardization, centralization, concentration, synchronization and bureaucracy, which has primarily contributed to the dissatisfaction of lawyers with the practice of law.  We live, support and fight for diverse lifestyles.

So, he continues, rather than hang shingles, Third Wave lawyers should pursue the M-Theory. This is a principle of physics that somehow translates into "doing what you love, while keeping your sanity, your earnings and your clients happy."

Which brings us back to Elefant and her shingle. "Truth is," she says, "trends and coolness aren't my focus." That's why, as quoted above, she prefers legal blogs of substance over form. "Maybe that makes me awfully stodgy in a third wave world, but that's My Shingle and I plan on sticking to it."

Hmmmm. Sounds very M-Theory to me.

Posted by Robert J. Ambrogi on October 31, 2006 at 11:59 AM | Permalink | Comments (0)

For Sale: One Gallows, Slightly Used

Throughout suburbia, the Halloween-decoration competition is beginning to rival Christmas. If your yard's ghoulishness remains frighteningly lackluster, here is just the adornment you need: the gallows Chicago built in the late 19th century to hang anarchist labor organizers convicted in the Haymarket Affair and later used to hang some of the city's most infamous criminals.

Actually, it will be a bit late for this Halloween, but, as writer Kari Lydersen reports in The Washington Post, the gallows is to be sold at auction beginning Nov. 20. Last used in the 1920s, it sat dismantled in the basement of the Cook County Jail until 1977, when two history buffs put it on display in a Wild West theme park in Union, Ill. Before it was retired and replaced in 1927 by the electric chair, the gallows was used in at least 40 hangings, beginning with those of four of eight men convicted in the deaths of eight police officers during an 1886 labor rally in Haymarket Square.

Starting bid: $5,000. If no private party steps forward to purchase the gallows, perhaps the states of New Hampshire and Washington will be interested -- hanging remains legal in both.

[Via Sentencing Law and Policy.]

Posted by Robert J. Ambrogi on October 31, 2006 at 11:53 AM | Permalink | Comments (0)