Friday, June 01, 2007

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Is a 'Super-Sized' Penalty Warranted for This Lawyer's Fast-Food Gaffe?

A federal bankruptcy judge's recent show cause order against a lawyer who told her that she was "a few french fries shy of a Happy Meal" has generated quite a bit of food for thought around the blogosphere. According to this Law.com article, William Smith, a partner at the large, Chicago-based law firm of McDermott, Will & Emery, commented to Judge Laurel Myerson Isicoff during a hearing at the Bankruptcy Court for the Southern District of Florida that "with all due respect, you're a few french fries short of a Happy Meal." The relevant portions of the transcript, available here at David Lat's Above the Law, show that the judge didn't say anything other than "proceed counsel" at the hearing, but subsequently, issued a Show Cause order asking Smith to demonstrate why his pro hac vice status shouldn't be revoked in light of his remarks. The judge also denied Smith's motion, and Smith's client has since replaced him with a local firm.

So, was the judge's Mac[dermott Will and Emery] Attack deserved? Or did the lawyer deserve a  nugget of leeway? Beldar makes the interesting point that this case shows that real-life lawyering doesn't resemble TV shows, where lawyers make these types of quips all the time ... and get away with them. But Beldar also endorses the judge's response. He concludes:

I don't know how this particular episode will turn out, but Mr. Smith ought to be glad I'm not on an Illinois bar committee reviewing his license. I'm a traditionalist and a curmudgeon, but just based upon this transcript excerpt, I'd likely start off thinking along the lines of a ninety-day license suspension, then maybe dialing that up or down depending on the remaining circumstances (and in particular, the degree of contrition expressed). I'd also be inclined to specify some onerous and creative public service requirements for Mr. Smith's path back to practice, along these lines.

Volokh also posts the story for discussion, where reader comments are split on whether the judge's actions were appropriate.

As for me, I've already posted on this at length at My Shingle, where I've taken some flak for my position that the judge's response was overkill. Let me be clearer here, however: I don't dispute that the lawyer's remarks were exceptionally rude and disrespectful. But it's clear from the transcript that the lawyer was upset at the judge's characterization of how events would play out, and he lost his cool -- something that all of us, if we're being honest, have done at least once in a professional context. To me, the more appropriate response would have been for the judge to either deflect the remark with a snappy response (and embarrass the attorney and diffuse any hostility) or to have simply called him on the carpet and demanded an apology. 

All of us want to increase the civility of our profession. But to do so, we need to make an effort not to overreact to hostile or inappropriate remarks, or we simply bring the conflict to another level. To me, it's far more productive to ask attorneys to behave properly and give them a chance to mend their ways instead of just dispatching a sanction, in short order.

Readers, your comments are welcome.

Posted by Carolyn Elefant on June 1, 2007 at 12:11 PM | Permalink | Comments (0)

Moonlighting and Your Legal Career

Stephen Seckler of Counsel to Counsel points to this interesting article by Peter Smith on why moonlighting for lawyers is the kiss of death.

Of course, for associates putting in 60-to 80-hour weeks, it's hard to imagine finding time to take on another job, in the law or otherwise, outside of work hours. But if such a person were crazily inclined to do so, Smith advises unequivocally: Don't!

For starters, moonlighting can create liability for your firm, even if you do the work on your own time. There's a potential for conflicts between your work and your day job at the firm. For example, the firm could lose a large chunk of business because it conflicts with a tiny matter that you're handling outside work hours. Other dangers include potential malpractice liability (and if your firm is sued and covered by malpractice, it can still go after you for damages) and possible ethics claims relating to fraud (for instance, if you use your firm's stationary when handling matters on your own, thereby giving a false impression that your firm is involved).

Posted by Carolyn Elefant on June 1, 2007 at 12:07 PM | Permalink | Comments (0)

Google Street View Raises Privacy Issues

My co-blogger, Bob Ambrogi, posts about how Google Maps' Street View feature rescued him after Amazon's A9 search engine dropped a similar feature. But will Bob lose a block view feature a second time? Right now, that possibility seems remote, but at the same time, some are making noises about whether Google's Street View feature unduly invades individuals' privacy, as discussed in this New York Times article,  Google Photos Stir a Debate Over Privacy (6/1/07; hat tip to Future Lawyer Rick Georges).

The Times article describes how one Street View user, Mary Kalin-Casey, was horrified when she used the feature to view her building and was able to see her cat perched in the living room window. The article quotes Kalin-Casey as saying:

The issue that I have ultimately is about where you draw the line between taking public photos and zooming in on people's lives," Ms. Kalin-Casey said in an interview Thursday on the front steps of the building. "The next step might be seeing books on my shelf. If the government was doing this, people would be outraged."

However, Google does not perceive the privacy issues the same way. From the article:

Google said in a statement that it takes privacy seriously and considered the privacy implications of its service before it was introduced on Tuesday. "Street View only features imagery taken on public property," the company said. "This imagery is no different from what any person can readily capture or see walking down the street."

Google also took precautions to remove potentially sensitive locations from view, such as domestic violence shelters. Others quoted in the article, including Kevin Bankston, a staff attorney at the Electronic Frontier Foundation, said the privacy issues could have been avoided or at least minimized. 

What's your view? 

Posted by Carolyn Elefant on June 1, 2007 at 11:49 AM | Permalink | Comments (0)

Will Lawyer With TB Face Civil Liability or Bar Charges?

Turns out that the mysterious passenger with a rare strand of a highly drug resistant form of tuberculosis who, against warnings from various specialists, returned by plane to the United States from his European honeymoon, thus potentially exposing all passengers aboard to the illness, is a lawyer -- Andrew Speaker of Georgia. Speaker, who is now quarantined in a Denver hospital, has since apologized to the passengers aboard. But according to this news story from USA Today (6/1/07), Speaker defended his decision to travel: He says that CDC knew of his TB, but never ordered him not to leave the country nor warned that he was a risk. And when the CDC told Speaker not to return, he was already in Europe and feared that he might die if he could not fly to a special facility in Denver for treatment. Health officials dispute Speaker's version, saying that he was told that traveling is against medical advice.

Professor Bainbridge explores Speaker's potential liability for FWI (flying while infected). First, Bainbridge wonders whether Speaker violated a federal criminal statute for flying, especially after having been warned not to do so. Next, Bainbridge considers the possibility of tort liability, analogizing Speaker's action to cases involving intentional or negligent infliction of venereal disease, which many courts recognize as an actionable tort. And Bainbridge digs up a case that's even more on point: a Pennsylvania matter where prisoners exposed to tuberculosis virus were held entitled to damages for mental suffering for fear of having contracted the disease or transmitted it to others.

Aside from being able to understand the grounds for potential liability, is it relevant that Speaker was a lawyer? Should Speaker have assessed the risks any differently from a plumber or a doctor or a teacher because he was a lawyer (and presumably aware of potential liability)? Or will Speaker garner less sympathy because he is a lawyer, and his conduct -- which Bainbridge accurately describes as "selfish, narcissistic, and wholly lacking in regard for others" -- is regarded as typical for lawyers?

I'm not sure about the answers to those questions, but I do know that Speaker's status as a lawyer matters in one respect, i.e., whether he can be subject to bar sanctions for his conduct. Bainbridge considered that possibility as well, though he notes that:

Georgia doesn't appear to have a legal ethics under which Speaker could get in trouble. Nothing seems to address "conduct unbecoming" or "conduct that brings the proession into disrepute," at least outside the context of representation of a client."  But Bainbridge adds that if Speaker is convicted of any felony or "a misdemeanor involving moral turpitude where the underlying conduct relates to the lawyer's fitness to practice law," he could be disbarred on those grounds.

Posted by Carolyn Elefant on June 1, 2007 at 11:44 AM | Permalink | Comments (0)

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