Tribute to Curtis Mayfield

While this is not legal content, strictly speaking, it contains a large fraction of the music associated with the United States civil rights movement, the results of which are most definitely legal content. Plus, all documents and no soul makes Bruce an even duller boy, as it were. HAT TIP to Lower Manhattanite of Group News Blog.

Is a Threesome with a Legal Client and His Girlfriend Unethical? Apparently Not

Note: Explicit Content

The Wisconsin Supreme Court held that a threesome between a male attorney, the female companion of a client and the client did not constitute "sexual relations with a current client" as defined in the professional ethics code in that state. Apparently, the decision turned on whether any physical contact, perhaps incidental, between the "intimate parts" of the attorney and the client was intentional, finding it not to be in this case.

Some days I just know that I should have gone on to business school instead of law school. This case has Attila of Pillage Idiot written all over it.

HAT TIP Volokh Conspiracy.

ONN: Presidential Campaign Analysis

A break from legal analysis, narrowly defined. While I am trying to keep the profanity content of this blog to a minimum, the profanity contained in this analysis of current political realities is not gratuitous but directly germane to the discussion. Some mild-moderate spoken profanity with one discreetly printed profane word, safe for most but perhaps not all U.S. workplaces.



Poll: [Deleted by Legal Contact] Is Most Important Issue For 2008 Voters

HAT TIP to The Garance.

Permissible Deception: "You Have a Tax Refund...."

AP via Maryland Daily Record, October 23, 2007:

Forty people promised a tax refund of more than $500 were arrested on criminal warrants when they appeared at a state office building to collect the refund, authorities said.

The Anne Arundel County Sheriff's Office sent letters to 500 people with outstanding warrants in October, saying that a computer error meant there was a $572.26 check for them that could be picked up in person.

...

The 500 represented the most recent criminal warrants, ranging from misdemeanors to felonies. The letters were sent Oct. 5, telling the subjects that a computer error had been detected in the "tax break indicators" used to determine their tax rates.

Law enforcement is permitted to engage in a substantial amount of so-called "permissible deception" in order to get open warrants served as well as to obtain confessions. I have not read the case law on such deception, but have heard of prior stunts such as a fake casting call for Robert DeNiro-film acting extras in New York. I do not recall clearly the boundary of permissible versus impermissible deception.

Disciplinary Cases - AGC v. Lawson, AGC v. Nussbaum

Most law jobs, like most things in life, involve a balancing test of pleasures and aggravations. I have been fortunate in my occasionally meandering career path to taste the different pleasures and displeasures of different practice areas.

One of the happy facts of my current line of work is that I am essentially incapable of coming into contact with the disciplinary authorities due to job-related activities. I do not currently appear in court, sign pleadings, meet with clients, handle escrow or other money or engage in advertising. For me to have contact with the disciplinary authorities would probably require me to garner an arrest or charge of some sort for unrelated lifestyle or recreational activities. For me to face lifestyle charges would require me in fact to develop a life, then a lifestyle, then a lifestyle in conflict with some body of criminal law. I barely even drink beer or ale anymore; hard to find the time or the recreational cash.

Two cases from Maryland's Court of Appeals recently impressed upon me the happiness of avoid contact with the disciplinary authorities. AGC v. Lawson and AGC v. Nussbaum. The first a very new practitioner suspended indefinitely with leave to reapply after a year, the latter a respected veteran of tax practice with a judge as a character witness - resulting in disbarment.

In Lawson's case, the allegations involved excessive fees and deception of a client regarding the basis for an increase of an agreed fee after representation commenced. In Nussbaum's case, Mr. Nussbaum defalcated client funds to pay for his office's operating needs, resulting in a bounced escrow check referred to Bar Counsel.

I actually don't know which case makes me sadder: a young attorney getting blown out of the water in his fourth year of practice or a veteran attorney stealing the last dollar of deposited client money, resulting in a bounced check. Stealing the first dollar is disbarrable but stealing down to exhaustion of the entire balance is beyond words. Judge Battaglia wrote each opinion and her ethics opinions are very often among the most severe in their sanctions against disciplined attorneys; her long-standing work advocating higher ethical standards.

If any readers are new attorneys in Maryland who managed not to get the "word" on Maryland-specific jurisprudence on attorney escrow accounts, let me do the service of telling you: no quicker or surer path to permanent disbarment exists than a willful violation of the client funds rules. You are better off getting caught with a $1,000 worth of marijuana than with $10.00 of defalcated client money or, indeed, any misappropriated money. Maryland's Court of Appeals takes any financial dishonesty extremely seriously, whether related to law practice or not; in Fellner v. Bar Association of Baltimore City, 213 Md. 243, 131 A.2d 729 (1957), the Court of Appeals disbarred Fellner for putting slugs instead of coins into a parking meter. That case is definitely still good law in Maryland, having been reaffirmed repeatedly as direct or indirect authority in multiple subsequent cases. Fellner is one of the cases that every Maryland attorney should know, without exception.

Blogospheric Sourcing and the Law

Over at Daily Kos, Kagro X has an excellent post about The New York Times' Frank Rich. While the post mentioned a highly provocative piece from Rich about George Bush and U.S. policy regarding torture, the main thrust of Kagro X' piece was to praise Rich, and to criticize most newspaper reporters and columnists, for their respective use and non-use of linking technology. Kagro X maintains, and I would agree, that the linking technology is a superior method of establishing and presenting source material for online journalists.

Many newspapers, including the Baltimore Sun and the Maryland Daily Record, use links suboptimally. (I would provide an example from the Daily Record now, but their whole site seems to be down at this date and hour.) The Sun could provide links in its articles to source material at least for publicly available documents (e.g. government websites) to bolster its discussion and content richness. Even the Sun's outside columnists do not seem to use links, though I don't know whether this is a matter of editorial policy.

The Washington Post, on the other hand, seems to use links (as in this example) in the mostly self-referential manner criticized by Kagro X:

When a newspaper says, "President Bush today announced his intention to invade Liechtenstein," the links are on "President Bush," and "Liechtenstein." And they link to archived articles about President Bush and Liechtenstein, in every other context in which that paper has written about those subjects.

Useless.

Unless, of course, you don't know who President Bush is, or more plausibly, what Liechtenstein is. In which case the links are perfect.

But for the rest of the reading world, it's not only useless, but a lingering sign of the traditional media's continuing inability or unwillingness to acknowledge and adopt a superior system developed outside of their auspices.

I think that it would be an excellent move for courts to require or encourage that attorneys not only file court documents in electronic format but that attorneys provide hot links for such for briefs, memoranda and other court pleadings. The federal courts have moved in this direction; most pleadings and other documents in many federal courts require both a paper and an electronic filing, with the court itself often taking only the electronic format. The courts do not require attorneys, however, to provide hot links for their legal citations, which I think would assist attorneys and courts alike.

Readers not familiar with legal citation may find this fairly-well written Wikipedia section on "case citation" of assistance.

Part of the problem is that many of the most useful, user-friendly research databases and archives are private. While one could devised links that might, hypothetically, link a reference to a case or statute to a particular database, there would have to be a gate to allow the private database to charge or confirm the reader as a subscriber. Furthermore, one might have to link multiple databases including inter alia Westlaw and Lexis in one link or set of links to be "fair" or "thorough," in a manner comparable to the extended citations to U.S. Reports, Supreme Court Reporter and the Lawyer's Edition [WARNING: PDF.]

Compare legal briefs to the Internet as a whole. You may be familiar with Technorati, the link tracker for most of the blogosphere and the Internet as a whole. Technorati is nothing more than the concept of Shepardizing taken from case and statute cites to the whole Internet for link "cites" - no more or less regarding legal content than any other content.

The legal profession is infamous for its slow embrace of technology. A great deal depends, I suspect, on when one went to law school. In 1995, the Internet was quite new; an acquaintance (now good friend) had to explain to me what it was. I graduated in 1994, when Lexis and Westlaw were available by dial-up at my law school, when AOL was cutting edge. Perhaps there are some newer attorneys who would consider my approach to technology Jurassic, though I generally have a laptop within ten feet of me at all times, and often log on from coffee houses in the field. (If those fools were smart, they would charge for the Internet and serve the coffee for free.) Attorneys a little older in practice than myself have exhibited great resistance to technology. Because the "rule makers" in the profession are, generally, politically connected senior members of the Bar with either anti-competitive or pro-government orientations from the Bar or Bench, they may be less interested in rapid change than would be a 38-year-old blogger attorney who makes his living largely on the Internet.

New Trust Account Rules for Attorneys

Ron Miller of Miller & Zois has a post up about the new attorney escrow account rules to take effect January 1, 2008. A link to a copy of the new rule changes is available here.

Most of the new rules governing record keeping are, in my view, merely explicit requirements of what should be going into an escrow account record keeping system in the first place. One must reconcile the account against bank statements monthly by explicit new rule, rather than because common sense and reasonable prudence demand it. Ditto with the explicit record-keeping requirements for each entry; common sense states that you should have a record for each entry, when, where, why and for whose benefit and purpose each expenditure and deposit is made.

I suspect that these rules are not to create new common sense behavior as much as to simplify nailing attorneys who keep their accounts in shambles, and to make attorneys responsible for immediate (as opposed to "when I clean it up") examination. Sensible attorneys already do most or all of what is being required.

In my practice, I have used QuickBooks to do my own accounting. QuickBooks allows for entries of substantially all of the information required under the new rules. What I also do is to set up escrow asset and escrow liability accounts in QuickBooks for each client in the Chart of Accounts, such that at a glance I can tell what the difference is if any between the balance and what is owed back to the client as of that moment. There should be no difference between asset and liability for each client, and no difference between the net account balance and the net liabilities for all clients other than permitted deposits for covering reasonably anticipated banking fees not chargeable to a specific client. In most cases, there will be few or no such fees if the account is set up through the IOLTA program (Interest on Lawyers' Trust Accounts, which interest goes either to the client or much more often to Legal Aid, never back to the attorney.) With QuickBooks, one can arrange the asset and liability accounts to be next to each other on the Chart of Accounts, for easy viewing and spot checking.

When I write a escrow check, it affects the asset and liability balances simultaneously. If I write a check from escrow to my operating account for fees earned, it affects three asset accounts and one liability account: the escrow asset and the account receivable asset are reduced, the liability back to the client on the escrow account is also reduced (i.e. don't have to pay that client's money back from escrow now) and the operating account goes up from the deposit. (One may write oneself an escrow check with a NAMED individual payee as a sole proprietor as long as one does not make it out to cash, but I always deposit the check into operating before taking any draws to be extra clean.) While my solo practice is not currently active, I maintain these accounts even today, as setting up an escrow account can be a MAJOR hassle and I think every practicing lawyer should have one available just in case.

Law practice management legend Jay Foonberg wisely advises attorneys in several of his books, including his guide to handling attorney escrow money, to make the checkbooks for the different accounts in different colors, making the escrow account "red" for danger. In my view, it is exceptionally unwise to permit anyone to touch or handle your escrow paperwork other than another senior or equity-level attorney or a CPA. Letting your secretary touch or handle it is a major mistake, even if you have known her or him for 20 years. It's printed plutonium.

Back to Work

I have been out of the blogging world for about a month now, with the exception of a few comments on other bloggers' sites. Since shutting down Crablaw Maryland Weekly and other blog projects associated with this site, I have been focused on getting full-time employment in Washington and Baltimore. Frankly, the market fluctuations in my sub-market have been a source of deep aggravation and demoralization for me, but the market has righted itself at long last. Tomorrow I start an interesting project with excellent prospects for permanent placement.

I stopped all of my prior blog projects for a number of reasons. The biggest reason was, perversely, that I had been too successful at blogging on politics. My professional profile needed to be focused on permanent employment. While the site did generate some income net of expenses, it was not even close to being a substitute for full-time work, but people would find artemia jokes and my rants about the weaknesses of Maryland's public transit system before finding out that I was a skilled attorney. Meanwhile, my full-time, very lucrative work ended without a successor project - the nature of my type of consulting/contract work. The decision was partly the result of Google's search engine algorithms which placed my name prominently among Maryland bloggers and vice versa, but to the subordination of my role as an attorney, i.e. the line of work that pays the mortgage and the diaper mafia and Sallie Mae and the car notes.

Also, I knew deep down that I would be sorely tempted to focus on blogging during the hiatus rather than on staying the course towards my employment goal. I would rationalize it, saying that I needed to make fresh content, keep the readership up, that I would not have a better time to blog, ever, than during a period of partial or complete unemployment. I needed to stay on task - getting employed full-time. The results were pretty good in the end: not only did I get a good full-time temp slot but one that has a meaningful prospect of permanent employment, along with a number of other job interviews, etc., along the way. Had I diverted my attention away from Job 1, I suspect I would have been less successful at this stage.

Part of the challenge that we have as a family is that I essentially have to be sole-breadwinner. Out of the two of us, I, rather than my wife Sunday, carry both the expensive sheepskins and the substantial debt burden servicing them. We have two boys who are autistic, making ordinary day care difficult if not impossible, let alone economically unfeasible. So we have a different set of challenges from some professional couples, e.g. two-lawyer no-child couples.

I am looking forward to the work starting tomorrow, and to getting back to blogging work here, at my new blogging home.