July 7th, 2009

Sotomayor Offers Lousy Defense To Ethics Charge Over Firm Name


It’s been bugging me since I saw it in the New York Times this morning: Sonia Sotomayor gave a lousy defense to an ethics charge over the name of her solo law practice, “Sotomayor & Associates.”

To backtrack a bit, she had a home office that overlapped her tenures at the District Attorney’s office and her stint at Pavin & Harcourt back in 1983-1986. Despite it being a solo practice, she called it “Sotomayor & Associates,” which is misleading since the Times has now confirmed what I had guessed at a month ago: That there were no actual associates.

Here is the defense, as laid out by an expert that the White House apparently retained after my posting appeared: The authority for prohibiting the misleading firm name was merely “advisory.”

That defense is — as defenses go when you are awaiting confirmation to the highest court in the land — just awful. I mean not just a little bit bad, but truly wretched to the point of embarrassing. From the Times article:

White House officials disagreed that the use of the name was a misstep, and they offered a written analysis by Hal R. Lieberman, a former disciplinary committee chief counsel in New York.

“Neither bar opinions nor cases to date have held that it was misleading for a sole practitioner to use the name ‘and Associates’ in such private communications,” he wrote in an e-mail message. “In fact, in the early 1980s, no rule prohibited the use of ‘and Associates’ in these circumstances and the only authority regarding the use of ‘and Associates’ in an advertising context was advisory, not mandatory, and thus not readily enforceable.”

After I wrote my initial post just hours after Judge Sotomayor released her questionnaire responses to the Senate Judiciary Committee, I dug a little further. I found an ethics advisory opinion from 1973 from the New York State Bar Association that was directly on point. It’s in the comments part of that post, but it is worth reprinting here since this has now become an issue:

Opinion 286 — 3/16/73 (1-73)
New York State Bar Association Committee on Professional Ethics
March 16, 1973

QUESTION

May an attorney who employs two or more “associates” use firm name “John Smith and Associates”?

OPINION

While not the usual form, there is nothing improper in the use of the firm name “John Smith and Associates”, provided that the lawyer or the firm has in fact two or more lawyer employees so that the name is not misleading. EC 2-10; EC 2-13; ABA 318 (1967); cf. EC 2-11; N.Y. State 45 (1967). However, where there are other partners in addition to those indicated in the firm name, it could be considered misleading to add, after the firm name the words “and Associates”, unless on the letterhead the names of all the partners and, separately, the names of the associates are shown. (ABA 310 (1963).)

So what should Sotomayor have done back in 1983 when she had her own small firm operating out of her home? She had these choices, as I see it:

OK, what is past is past.What should she do now? While I hesitate from my tiny little perch in cyberspace to give advice to a Supreme Court nominee, I’m going to do it anyway in the event this comes up in the confirmation hearings or in other news articles.

  1. Forget that crap from Hal Lieberman about there being no rule and the ethics opinion being merely advisory. You are not before a court of law but the court of public opinion. The rules said you can’t mislead. You said you had associates and you didn’t. End of story. You screwed that up.
  2. Admit that you screwed it up. Don’t try to lawyer your way out of it. Offer up the simple explanation: You were still in the D.A.’s office at the time and this was a small law practice that only a few relatives and friends even knew about, and you never even gave the name any thought. Yes, it was wrong. But it was done out of inadvertence.

The mistake was minor in the big scheme of things. If the ethics committee found out about it at the time it would have wagged its finger and said no-no, that’s misleading, please change it. That’s it.

Americans don’t expect saints on the bench. Humans are fallible. It’s OK to screw up once in awhile.

But don’t trot out lame excuses. Don’t try to lawyer your way out of this with being “advisory.” That is something that people won’t tolerate.

[Sotomayor tag now added for all Sotomayor posts]

Links to this post:

blawg review #220
welcome to blawg review #220, rounding up some highlights of the past week from around the legal blogosphere. it’s my second time hosting it here at overlawyered, a blog that as its name implies maintains a certain critical distance

posted by Walter Olson @ July 13, 2009 3:40 AM

Tax ‘Issues’ For Sotomayor?
There is some question as to if Sotomayor may have some tax ‘issue’ about to bubble to the surface. Sotomayor had a private law office she named “Sotomayor & Associates”, but there were no associates. There is nothing illegal about

posted by Andrew Berman @ July 08, 2009 6:15 PM

Two New Strikes against Judge Sotomayor
As a blog says, Sotomayor’s defense give for using the name “Sotomayor and Associates” for her solo practice is weak. It’s legalistic (that is, it evades the ethics question and makes it a question of rules) and it’s wrong.

posted by Eric Rasmusen @ July 08, 2009 4:24 PM

And it rolls in further, a tide of hypocrisy and
dumbass rising. Obama in Moscow: Along the way, you gave us a pretty good deal on Alaska. Thank you. D’OH!!! The man is a Laff Riot!!! That’s the way to “hit the Reset button”, Mr. President. Remind the Russians of perhaps the stupidest

posted by Firehand @ July 08, 2009 3:31 PM

taxprof: does judge sotomayor have a tax problem? update: related
taxprof: does judge sotomayor have a tax problem? update: related item here.

posted by Glenn Reynolds @ July 08, 2009 1:55 PM

sotomayor “and associates”
when practicing a bit of law on the side during her time with the manhattan da’s office and at a larger law firm, the nominee called her very small practice “sotomayor & associates” even though it had no lawyers but herself.

posted by Walter Olson @ July 08, 2009 7:20 AM

sotomayor & associates
[guest post by drj]. the new york times addresses sonia sotomayor’s legal practice in the 1980’s: “in her questionnaire, judge sotomayor says she was the “owner” of sotomayor & associates, which she described as a consulting business
posted by DRJ @ July 08, 2009 12:08 AM

 

July 7th, 2009

Welcome New Visitors: (NYT on Sotomayor & Associates, And On Failing to Credit Story Source)

It’s funny how one can be in the news without actually being in the news. As mentioned earlier today, the New York Times ran a story about “Sotomayor & Associates” and the fact that she didn’t have any actual associates. I wrote that story up back on June 4th, and it’s laid mostly dormant since then.

But when the Times failed to credit me with having found this item as they furthered the investigation, other bloggers took notice and the issue of journalistic ethics reared its head.

To my new readers (at least for a day), I welcome you. If you want to know more of the types of stuff I write about here, and whether this obscure little blog should be part of your RSS feed, you can skim this “best of” piece.

Welcome to readers of those that follow (and my thanks to their authors for the inbound links). I’ll update this later with further links should the story be of interest to others:

  • Scott Greenfield @ Simple Justice with a long and gracious post (Credit is a Two Way Street) that includes this lede:

    Judge Richard Posner recently suggested an extreme solution to the potential death of the newspaper. Using the argument that there’s no reason to buy the cow when you can get the milk for free, Posner urged the expansion of copyright law to “bar online access to copyrighted materials without the copyright holder’s consent, or to bar linking to or paraphrasing copyrighted materials without the copyright holder’s consent.” In other words, burn blogs to save newspapers.

    But this assumes, as Posner does, that its only blogs that free-ride off the newsgathering efforts of “legitimate” media. While this is certainly the predominant flow, it’s not always the case, as was clear today when the New York Times published a story about Sonia Sotomayor’s foray into private practice under the name “Sotomayor and Associates.” It was a wonderful piece of investigative journalism, but for one detail. The news was unearthed not by the Times, but by blawger Eric Turkewitz at New York Personal Injury Attorney Blog…[more]

  • Prof David Wgner @ Ninomania:

    Did Sotomayor violate a well-established bar rule in calling her solo practice in 1983-6 “Sotomayor & Associates” when evidence suggests it was just herself helping family and friends via a home practice?

  • John Steele @ Legal Ethics Forum:

    A solo cannot describe his or her practice with the phrase “and Associates” if in fact there are no associates there. It’s false and misleading. [more]

  • Jim Lindgren @ Volokh Conspiracy: A multi-state look at the use of “and Associates” in the name of a solo practice
  • Walter Olson @ Point of Law:

    …the nominee called her very small practice “Sotomayor & Associates” even though it had no lawyers but herself. That would appear to be an infraction, if a minor one, of the relevant New York ethical rules.

  • Mark Draughn @ WindyPundit:

    Even if he got the idea from Turkewitz’s’ blog, he probably considers the idea public property because the primary source for the blog post—Sotomeyor’s questionnaire—is available to anyone, and Turkewitz doesn’t have any ownership of the story just because he wrote about it first. [Much more at On the Ethics of Sourcing For Bloggers and Journalists]

[New Sotomayor tag added for easy access to all Sotomayor posts]

Links to this post:

blawg review #220
welcome to blawg review #220, rounding up some highlights of the past week from around the legal blogosphere. it’s my second time hosting it here at overlawyered, a blog that as its name implies maintains a certain critical distance

posted by Walter Olson @ July 13, 2009 3:40 AM

sonia sotomayor “and associates”
[i’ve edited to make this tighter.] story here and here. eric turkewitz, a new york lawyer/blawger, broke the story. [then professor alberto bernabe, of the john marshall school of law, blogged about it.]
posted by John Steele @ July 07, 2009 2:48 PM

 

July 7th, 2009

NYT: "Sotomayor & Associates" Becomes an Issue For Nominee and White House


On June 4th Sonia Sotomayor released an extensive, completed questionnaire about her past to the Senate, and I picked up on the fact that her solo law firm “Sotomayor & Associates” didn’t have any actual associates. This raised an ethical issue, albeit a small one, because it was misleading to the public. The private firm overlapped both her time in the District Attorney’s office and her time with her next gig, Pavia & Harcourt.

And there my little post sat, relatively ignored. Until the Washington Times picked up on it in an editorial on June 20th. While I don’t agree with their premise that it was indicative of larger issues, it was nice that they at least gave attribution to me for finding the item.

And now today the ethical issue of “Sotomayor & Associates” lands in the New York Times (Little Information Given About Solo Law Practice Run by Sotomayor in ’80s.) The Times treats the story as original material to the paper, without giving attribution to others.

The Times has now expanded on the quick treatment that I gave it, and checked with the White House to get more details on the law firm. They found that:

The White House has described Ms. Sotomayor’s outside legal work as an informal practice, one that never required her to file legal documents or appear in court. She never incorporated Sotomayor & Associates or registered it as a business in Manhattan or Brooklyn, where she then lived, according to public records, though she was not required to do so.

The Times goes on to quote old-reliable ethics commentator and NYU law prof Stephen Gillers (are there no other ethics attorneys to quote in New York?) as agreeing with me that this was a violation of the ethical rules in effect at the time:

Stephen Gillers, professor of legal ethics at New York University Law School, said Judge Sotomayor’s use of the larger-sounding title was “inadvisable because it is inaccurate.” He noted that bar associations frown on the use of the term “and associates” by single practitioners. “She could have just said, ‘Law Offices of Sonia Sotomayor,’ ” he said.

[Note to Gillers: If Sotomayor wrote “Law Offices of Sonia Sotomayor” it would also be inaccurate. It would need to be singular, not plural.]

The White House, however, claims that no ethical violation occurred with the use of “& Associates” at a time when there were no actual associates. They responded:

“Neither bar opinions nor cases to date have held that it was misleading for a sole practitioner to use the name ‘and Associates’ in such private communications…In fact, in the early 1980s, no rule prohibited the use of ‘and Associates’ in these circumstances and the only authority regarding the use of ‘and Associates’ in an advertising context was advisory, not mandatory, and thus not readily enforceable.”

Why did I bother with this minor issue to begin with? Because I sometimes write about the practice of law for small practitioners, about legal marketing and its problems, because the nominee fell into that zone of commentary, and because massive layoffs in the legal field were sending folks out on their own. It was meant as little more than a cautionary tale for those starting up their own practices to be careful about over-promoting themselves and running into trouble.

Now if we could turn to the ethics of the New York Times in using the stories of others without giving credit….

Update: I’ve added more regarding this at: Sotomayor Offers Lousy Defense To Ethics Charge Over Firm Name

Links to this post:

blawg review #220
welcome to blawg review #220, rounding up some highlights of the past week from around the legal blogosphere. it’s my second time hosting it here at overlawyered, a blog that as its name implies maintains a certain critical distance

posted by Walter Olson @ July 13, 2009 3:40 AM

the lessons of sotomayor and associates
fittingly, it was a solo – eric turkewitz – who broke the story of supreme court nominee, sonya_sotomayor’s foray into solo practice under the firm name, sotomayor and associates -impermissible name under new york ethics rules given

posted by loce@his.com (Carolyn Elefant) @ July 13, 2009 12:59 AM

sotomayor “and associates”
when practicing a bit of law on the side during her time with the manhattan da’s office and at a larger law firm, the nominee called her very small practice “sotomayor & associates” even though it had no lawyers but herself.

posted by Walter Olson @ July 08, 2009 7:20 AM

“Sotomayor & Associates” … meh, who cares?
Nothing has happened since May 26 to make me change my initial take on Pres. Obama’s nomination of US Circuit Judge Sonia Sotomayor to fill Justice Souter’s seat on the Supreme Court. (That take, in short, was this: Obama would never

posted by Beldar @ July 07, 2009 11:01 PM

sonia sotomayor “and associates”
[i’ve edited to make this tighter.] story here and here. eric turkewitz, a new york lawyer/blawger, broke the story. [then professor alberto bernabe, of the john marshall school of law, blogged about it.]

posted by John Steele @ July 07, 2009 2:48 PM

legal ethics — and journalistic ethics….
legal ethics — and journalistic ethics.
posted by Glenn Reynolds @ July 07, 2009 8:54 AM

 

July 2nd, 2009

July 2nd: A Day to Declare Independence (And Celebrate Juries)


On July 2nd, 1776, the Continental Congress voted for Independence. We celebrate, however, on the 4th when the Declaration was signed. I discussed this last year in: United States of America Declares Its Independence (Jury Trials Are One Reason)

But it’s worth repeating this year on the heels this week of the WSJ op-ed by high profile law professor Richard A. Epstein, who proclaimed that the right to a jury trial was a mere “procedural feature,” among other ludicrous claims.

And so it’s worth repeating that not only is the mere “procedural feature” enshrined in the Bill of Rights, but it’s also in the Declaration of Independence.

In the long bill of particulars of reasons we took up arms against the crown is this:

For depriving us in many cases, of the benefit of Trial by Jury

Have a good read:

IN CONGRESS, JULY 4, 1776
The unanimous Declaration of the thirteen united States of America


When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. — Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.

He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.

He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their Public Records, for the sole purpose of fatiguing them into compliance with his measures.

He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

He has refused for a long time, after such dissolutions, to cause others to be elected, whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.

He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.

He has obstructed the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers.

He has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.

He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.

He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.

He has affected to render the Military independent of and superior to the Civil Power.

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:

For quartering large bodies of armed troops among us:

For protecting them, by a mock Trial from punishment for any Murders which they should commit on the Inhabitants of these States:

For cutting off our Trade with all parts of the world:

For imposing Taxes on us without our Consent:

For depriving us in many cases, of the benefit of Trial by Jury:

For transporting us beyond Seas to be tried for pretended offences:

For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies

For taking away our Charters, abolishing our most valuable Laws and altering fundamentally the Forms of our Governments:

For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

He has abdicated Government here, by declaring us out of his Protection and waging War against us.

He has plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people.

He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation, and tyranny, already begun with circumstances of Cruelty & Perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.

He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.

He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

Nor have We been wanting in attentions to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States, that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. — And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.

 

July 1st, 2009

Congratulations to Overlawyered


Overlawyered today celebrates its 10 year anniversary, making it the longest legally-themed blog around. It has also provided me with one of the biggest surprises that I’ve experienced, and invaluable lessons about how to blog.

Its proprietor, Walter Olson, uses the site to document the high cost of litigation. He has his conservative political views, which are often diametrically opposed to mine. In fact, if the proposals of the Manhattan Institute (where he is a fellow) were followed, the rights of many (if not all) of my clients would likely be eviscerated. That means we knock heads every so often, as I do with his co-blogger Ted Frank.

And despite this, while still in my rookie year blogging, he added me to the blog roll of his site. I wrote at that time, back in August 2007:

When pigs fly, I hear you say.

Would the oldest legal blog in America — dedicated to documenting the high cost of our legal system and, perhaps, savoring some of the outrageousness that exists (Pants Pearson, anyone?) for the anecdotal benefits — actually add a dyed-in-the-wool, 100% personal injury attorney to their blogroll? An individual that takes tort “reformers” to task every so often? One who is a guest contributor at Overlawyered’s arch nemesis, TortDeform? Well, yes. They would.

And he didn’t just add me to his blog roll, but he links to me with some frequency sending me a steady source of readers. And those links don’t just come in where I agree with him about a suit that was stupidly brought — and in a nation of 300 million that will happen with some frequency — but more often when I disagree with him on an issue. He is telling his own readers: And for the opposing view, see this post from a PI guy.

Lesson learned. Don’t ignore opposing views. Read them, consider them, and respond to them if you wish. It is the ideas that matter. Same as in the courtroom.

Another lesson is that he has never once made a personal attack, despite all my criticisms. Which is also something that every legal battle should embrace. Respond to the message, not the messenger. Judges hate personal attacks.

And another lesson: Admit mistakes when they happen. You can’t be constantly writing in the blogosphere, often quickly and with little editing, and not make mistakes. At his sister site, Point of Law, he showed the way mistakes are rectified.

And so, a tip of the hat today to Walter Olson. Not just for figuring out this blogging thing faster than any one else, but for doing it with class and style.