Must have been quite a deposition.

Speaking of churning the bill, Pointoflaw.com has a post about a case where "one attorney billed 239 hours and over $90,000 to summarize a one-day deposition transcript of under 400 pages."  If the deposition were actually 24 hours-and I suspect that the deposition was probably less than half that amount of time-then the attorney spent nearly 10 hours summarizing each hour of the deposition.  Blaise Pascal wrote about how it took longer to write a short letter than a long one.  Apparently that is also true for deposition summaries.

An Inexcusable Effort At Humor?

Reader(s)™ who follow the legal news have probably heard about the infamous email unearthed in a fee dispute involving mega-firm DLA Piper. In short, some guy owes DLA Piper a bunch of fees, and when they sued him he countersued alleging over-billing, etc. (Protip: don't sue your clients.) Among the docs produced is an email from one grunt associate to another which contains the words "churn that bill, baby!" To churn, in Biglaw-speak, is to make work, or overstaff. In other words, to over-bill.

In context, the quote isn't quite as bad. It's not a direction from a partner to an associate to churn. It's rather some bullshitting between two powerless grunts about the behavior of a another lawyer (a partner, I believe) who had a reputation for running up big numbers. It is the kind of thing one grunt associate has said to another grunt associate a billion times at sweat shops like DLA Piper. Most of those grunts are smart enough not to put it in writing, though.

DLA Piper has responded to press coverage of the email with a statement that the email was an "inexcusable effort at humor." As mentioned, I think it's likely correct that the comment was said in jest, at least partially. But was it an "inexcusable" effort?

Well, some people say there are no dumb questions. I say there are no inexcusable efforts at humor, especially when you are toiling away at a two-million-lawyer law firm that I always thought was an accounting firm. But you have to know your media. Irreverence has a place in the law. Does it ever! But usually its place starts in the larynx and spews out through the mouth. What I'm saying is: don't write that shit down, bro.*

*Disclaimer notwithstanding, consider that some free all-purpose legal advice.

E-Filers Beware

A Hearing Board of the Illinois Attorney Registration and Disciplinary Commission has reprimanded an attorney who permitted documents with unredacted personal identifying information (such as social security numbers) to be electronically filed with the Northern District of Illinois's CM/ECF system. As is common at law firms, it was actually a non-lawyer assistant who filed the documents, using the attorney's log-in credentials. Here are the stipulated facts:

1.    In 2010, Respondent, an associate attorney at the law firm of Greene and Letts in Chicago, Illinois, was the attorney responsible for all cases stemming from a contract the law firm had with the United States Department of Justice to represent the United States in debt collection cases involving student loans.

2.    In July and August 2011, at Respondent's direction, one of Respondent's several non-lawyer assistants prepared complaints and corresponding exhibits alleging that defendants were indebted to the United States for failure to pay student loans.

3.    At Respondent's direction, one of Respondent's several non-lawyer assistants logged on to the U.S. District Court for the Northern District of Illinois ("N.D. Ill.") Case Management/Electronic Case File ("CM/ECF") system to file the complaints and exhibits.

4.    When logging on to the CM/ECF system, one of Respondent's several non-lawyer assistants, was required to check a box that declared that the filings were in compliance with Rule 5.2(a) of the Federal Rules of Civil Procedure ("Rule 5.2(a)"), which required that personal identifying information be redacted from all filings.

5.    The exhibits that Respondent attached to the complaints were loan documents that contained the defendants' personal identifying information, such as social security number, date of birth, and account numbers. In numerous complaints and exhibits, defendants' personal identifying information was not redacted, which cause the defendants' personal identifying information to be available to the public and viewable on the N.D. Ill. website home page.

6.    In late August 2011, defendant Aimee Krause ("Krause") notified the Clerk of the N.D. Ill. and Respondent that her personal identifying information was available to the public and viewable on the N.D. Ill. website home page.

7.    Also, Krause notified Respondent that other defendants' named in complaints filed by Respondent's had their personal identifying information in exhibits not redacted, and thus available and viewable on the N.D. Ill. website home page. The Clerk of the N.D. Ill. also notified Respondent of other defendants with personal identifying information not redacted in the exhibits.

8.    After Respondent was made aware that defendants' personal identifying information was not redacted, Respondent or his non-lawyer assistants at Respondent's direction, filed motions to correct and replace exhibits. However, Respondent did not provide appropriate supervision to his non-lawyer assistants to ensure that Respondent's subsequent filings were redacted as required to comply with Rule 5.2(a).

A reprimand under these circumstances certainly seems appropriate. First, I am well aware of the little check-box you have to check every time you log in to the Northern District's CM/ECF system. If you don't check the box, you don't get to file. This serves as a conspicuous reminder of the duty to redact this kind of information from filings. Second, this particular attorney was engaged in debt collection, and nearly every document involved in that kind of practice is plastered with the forbidden information. So he should have known well to be careful.

But this reprimand is a useful reminder that the duty to redact this information is not to be taken lightly. It's also a reminder that good help is hard to find.

h/t: Legal Profession Blog

Bad Advice

Eric Goldman details the facts of a case where an attorney told his client to "clean up" his Facebook page (which contained some unflattering photos) during a wrongful death suit, even after the other side requested its contents in discovery.

The scheme was easily detected by opposing counsel, and the lawyer was hit with a $542,000 sanction. (The client was also ordered to pay $180,000 to cover the other side's attorneys' fees for litigating the issue.)

Ultimately, the sanctioned lawyer and his client won an $11 million verdict, and the Court of Appeals recently reinstated the entire verdict. So the lawyer is still coming out way ahead on this case.

But it sort of frustrating to know that a lawyer who is stupid and unethical enough to order his client to tamper with or destroy evidence is taking home a multi-million dollar payday.

Don't steal Westlaw

Westlaw might be making money off your briefs, but if you use a Westlaw password without permission you might well find yourself getting disciplined by the bar authorities.

The other shoe drops

Back in February, Mr. Torvik posted about how the Seventh Circuit disbarred Milwaukee, Wisconsin criminal defense attorney Bridget Boyle.  The Wisconsin Supreme Court suspended Ms. Boyle's law license for 60 days, effective June 27, 2012.  Ms. Boyle also had to pay at $5,000 fine.  The order is here.  One might think tht the suspension is related to the disbarrment.  Surprisingly, however, the case that prompted the Seventh Circuit to disbar Ms. Boyle is not part of the events that led the Wisconsin Supreme Court to suspend Ms. Boyle's law license.  Of course, because this is the Wisconsin Supreme Court, two justices dissent. Athough they dissent because they think the penalty is not sufficient so maybe we are ok with that.

Should attorneys marry their clients and misappropriate trust funds?

The State Bar Court of California says such conduct will get an attorney disbarred.  Ms. Lowney is, or perhaps more accurately was, an attorney practicing estate planning law in Pacifica, California.  The court has recommended that Ms. Lowney be disbarred for moral turpitude, failing to comply with the law by filing a false document, and maintaining an unjust action.

What did Ms. Lowney do?  Well, in 2000, Thor Tollefsen, an 81-year-old man, hired Ms. Lowney to help him plan his estate.  In 2002, Ms. Lowney prepared for Mr. Tollefsen a pour-over will and a revocable trust.  The value of the trust was $340,000.  The trust names some of Mr. Tollefsen's relatives in Norway as beneficiaries and successor co-trustees. 

By August 2005, Ms. Lowney—who was in her fifties—and Mr. Tollefsen became romantically involved.  Ms. Lowney promised Mr. Tollefsen that she would take care of him as he suffered from emphysema and terminal cancer.  Mr. Tollefsen then transferred to Ms. Lowney, as his attorney, the $340,000 for use in caring for him.  To accomplish this transfer, Mr. Tollefsen asked for and received permission from his relatives in Norway to transfer the money.  The relatives in Norway understood that any money left over at Mr. Tollefsen's death would be returned to the trust. 

Mr. Tollefsen's condition worsened and he agreed to marry Ms. Lowney at her request.  Because Ms. Lowney did not want Mr. Tollefsen's relatives or her own daughter (who was under 18) to find out about the marriage, she and Mr. Tollefsen arranged to have a confidential marriage.  (As an aside, I don't believe I have ever heard of a confidential marriage.  Some critics, for example this article, suggest that confidential marriages are favored by bigamists because the marriage records are under seal.)  One requirement of getting a confidential marriage license is that the applicants have to state they have been living together.  Mr. Tollefsen and Ms. Lowney falsely stated that they were living together.  They were married in early 2006.  Notably, Mr. Tollefsen refused to name Ms. Lowney as a beneficiary after their marriage.

By the fall of 2006, Mr. Tollefsen felt that Ms. Lowney was not doing a good job of taking care of him and complained to his relatives in Norway about her.  In January 2007, Mr. Tollefsen moved into a senior care facility.  He died before the month was over while on a weekend visit to his home.

After he died, Ms. Lowney transferred the trusts funds into three separate accounts and had Mr. Tollefsen cremated against his express wish to be donated to medical science.  Ms. Lowney also tried to remove Mr. Tollefsen's relatives as trustees of his trust despite the fact that she had no standing to do so.  After that removal was denied, she claimed she was Mr. Tollefsen's spouse and therefore entitled to a share of his estate.  When a trial court denied her claim that she was Mr. Tollefsen's spouse, Mr. Lowney appealed.  The California Court of Appeals was so troubled by her actions that it asked the California State Bar to decide whether a disciplinary action was needed.  The end result was the recommendation that Ms. Lowney be disbarred.

The order notes that Ms. Lowney practiced law for 32 years without being disciplined.  I am not sure what to make of this.  Are we to believe that Ms. Lowney's misappropriating client funds, making false statements, and pursuing bad faith litigation, were all her first brush with violating the rules of professional conduct?  If so, I guess Ms. Lowney believes in the maxim, "go big or go home." 

The order also states that Ms. Lowney must comply with Rule 9.20 of the California Rules of Court.  Rule 9.20 sets forth what steps a disbarred attorney must take in regards to notifying courts, clients, co-counsel,  and opposing counsel of the disbarment.  The rule also requires that the disbarred attorney file proof of compliance with the Clerk of the State Bar Court.  What penalty will Ms. Lowney face if she does not comply with the rule?  Disbarment, of course.  One might think that threatening a disbarred attorney with disbarment is an ineffective punishment.  But, I am sure the court knows what it is doing.

The Seventh Circuit disbars high-profile Milwaukee criminal lawyer for client abandonment

The Proof & Hearsay blog has the scoop.

Note: the Seventh Circuit will not be ignored!

Big money lost by Menards

I recently came across the very interesting case of Sands v. Menard, Inc., which was decided by the Wisconsin Supreme Court in July.  It raises a number of interesting points, and one basic one:  if an in-house lawyer—particularly a corporation’s General Counsel—is fired for a discriminatory reason, can the court order reinstatement as a remedy, thereby forcing the corporation into an attorney-client relationship with an attorney not of its choosing?  In its typical 4-3 split, the Wisconsin Supreme Court said no.

Pro Boner Publico

Last year, Chicago attorney Steven Koukios was arrested.  As the Chicago Tribune puts it, he "was taken into custody after arriving at a Chicago apartment in April 2009 just moments after police had arrested Shannon Rosillo, 33, for soliciting an undercover police officer. Authorities charged Rosillo with prostitution and Koukios with visiting a 'house of ill fame.'"

As he sat in the back of the squad car with Ms. Rosillo, Koukios stepped up and attempted to make the best of a bad situation:  he offered to represent her free of charge.  And he kept his word.  He appeared in court on Rosillo's behalf, and negotiated a plea agreement for her.  There was just one problem:  he never discussed his potential conflict of interest in the case.  This got him in trouble when, later on the same day that he appeared on Rosillo's behalf he appeared--before the very same judge--on his own behalf to deal with the "house of ill fame" charge against him.

Koukios has agreed to censure from the attorney disciplinary board.  This is just another example how even the best of intentions can get you in trouble.  As Koukios's lawyer put it:

"His only motivation was to help this young lady who was distraught," Ex said. "He did it without charge to her — financial charge."

Hmm.  Was there a non-financial charge?

UPDATE:

I did a little digging, and discovered that this is not the first time Koukios has been censured by the Illinois Attorney Registration and Disciplinary Commission.  He was also censured in 2007 for more mundane, but really more troubling, conduct:  he basically quit on a case.  Without his client's consent, he hired another attorney to work on the case and had that attorney settle that case without the client's consent.  The disciplinary board's decision is here.

Given this prior censure, I'm actually a little surprised that the Commission would agree to settle for just another censure in this case.  And, particularly given the publicity the case is generating--which clearly reflects poorly on the profession--I think the Supreme Court might impose a harsher punishment.

UPDATE 1/19/2011:

Koukios skates by with a censure.

Blago abandons client files

Oops.

This raises an interesting question:  Blago had clients?

Wendy Murphy, Esq.: Lawyer, Pundit, Bullshitter.

Mr. Gillette:  Great post on lawyer-pundit Wendy Murphy!  This is the first I've heard of her, as I don't catch much cable news these days.  In fact, people like Ms. Murphy are the main reason I stopped watching cable news years ago.

But I am going to do my best to defend Murphy.  In her own defense, this is what she says:

How to succeed in television without really trying.

Criminal justice reporter Radley Balko has an interesting post on how to succeed as a television pundit in the twenty-first century: just lie or make stuff up.

Mr. Balko's post deals with Wendy Murphy. Ms. Murphy is a "former child abuse and sex crimes prosecutor who teaches at New England Law/Boston." She also apparently makes a habit of going on TV and, at a minimum, making stuff up. As Mr. Balko details, she claims that only 2 percent of sex offenders are on sex offender registries (there doesn't appear to be a study supporting that claim); that half of the inmates in California prisons are illegal immigrants (the actual number is around twelve percent); a series of demonstrably false statements about the Duke lacrosse players rape case (for which Fox News took a swipe at her); and propounds a belief that illegal immigrants do not love their children but instead view their children as commodities.

A blog post or media story about pundits telling lies or making stuff up would normally not interest me. Such a story would seem to fall into the category of "dog bites man". Except that Ms. Murphy is an active attorney in Massachusetts and therefore subject to the Massachusetts Rules of Professional Conduct. Those rules frown on lawyers making false statements. For example, Rules 3.3 and 3.4 prohibit a lawyer from making false statements in court or from offering evidence that a lawyer knows is false. Additionally, under Rule 7.1 a lawyer shall not make false or misleading statements about the lawyer's services. Rule 8.1 prohibits a lawyer from making a false statement in connection with a bar admission application or a disciplinary matter. Rule 8.2 prohibits false statements about the qualifications or integrity of judges, magistrates, or candidates for judicial office.

You may be saying to yourself, "O.K., there is a general policy towards not lying. But, Ms. Murphy hasn't violated any specific rule." That leads us to Rule 7.3, which says that "in soliciting professional employment, a lawyer shall not . . . shall not make a false or misleading communication." If programs on which she appears ask Ms. Murphy what she is going to say before they decide to bring her on, this rule may cause Ms. Murphy some trouble. Since we don't know how she solicits work, the charitable thing may be to assume she doesn't tell falsehoods prior to getting on the program and making stuff up.

Ms. Murphy's antics raise some questions. If a lawyer is going to go on television (or posts on a blog about the law), what is the scope of their obligation of candor (if any) and what are people's expectations for truth from lawyer pundits? While, I know that lawyers compare unfavorably to catfish, I prefer that members of our profession not go on TV and give folks even more reasons to dislike us.