Category Archives: Attorney Ethics

 

May 8th, 2008

NY Pension Scandal: "The Predominant Class Will be Lawyers"

The brouhaha that started out on Long Island with part-time private lawyers being listed as full-time public employees in schools and getting pension benefits, has now mushroomed into a full blown scandal. According to tomorrow’s New York Law Journal, New York Attorney General Andrew Cuomo is predicting that “hundreds and hundreds” of attorneys will ultimately be implicated in his office’s investigation of government entities improperly enrolling non-employees in public pension funds.

And this is the scary part, while “there will be people beyond lawyers” found to be receiving improper public pension benefits, “the predominant class will be lawyers.”

The story broke February 15th with this story in Newsday after an investigation by auditors with the New York State Comptroller’s Office: Five districts falsely reported lawyer’s job status. At that time a part-time municipal attorney found to be on the employment rolls of five different school districts defended himself by saying it was “common practice.” It appears now that that may have been true, that it was common practice. But if everyone in your area runs a stop sign, it is no defense when you get busted to say that everyone does it.

Careers are about to go up in smoke. Many, many careers. This “PensionEsq.” scandal will be with us for a long, long time.

Scott Greenfield, author of Simple Justice (and criminal defense lawyer extraordinaire) has been providing extensive coverage to date:

Updated with commentary/news on the scandal:

  • “The Predominant Class Will Be Lawyers” (5/9/08; Greenfield):

    The patchwork quilt of what I call “baby governments” is rife with corruption, but it’s mostly of the petty sort. A dime here, a dollar there, a harmless little violation of the open meetings law, a blow-off of the freedom of information law. Selective and vindictive resolution of problems or enforcement of law. That sort of stuff. The sort that allows the big fish in tiny little ponds to feel self-important and powerful, all on someone else’s dime.

  • Pension Probe Will Snare ‘Hundreds’ of Attorneys, N.Y. Attorney General Predicts (5/9/08: Albany’s Insanity)

    For those of you that continually come out and defend the inept governments of this state, for those of you that just love to personally attack people like us for calling it like we see it, just read, it is just like we have been saying for years, time to open your eyes, take off the blindfolds and go after this crap.

  • Cuomo Sees Fraud in Some Lawyers’ Pensions (5/9/08; New York Times)

    Over the years, Mr. Cuomo said, the benefits have become a standard and expected perk for the lawyers, who often have political ties to the officials handing out the benefit. The system has proliferated, Mr. Cuomo suggested, because of New York’s profusion of state, county and local governments.

 

May 6th, 2008

Blogger v. Attorney (Seidel v. Shoemaker), And Today’s Very Strange Motion

This is one of the weirder legal arguments I have seen. And it comes today on top of the very weird subpoena that had been issued by Virginia attorney Clifford Shoemaker to New Hampshire blogger Kathleen Seidel a few weeks ago.

The brief background is that Shoemaker represents Lisa and Seth Sykes in a Virginia suit over whether mercury in vaccines causing autism. Seidel isn’t part of that recently discontinued suit; she is just a blogger (albeit a very knowledgeable one) in New Hampshire who writes on the subject at her blog, Neurodiversity.

Now Weird Move #1 came when Shoemaker served a subpoena on Seidel asking for all kinds of crazy stuff that has nothing to do with his suit, including production of “all documents pertaining to the setup, financing, running, research, maintaining the website http://www.neurodiversity.com.” This included the out-of-this-world crazy demand regarding “religious groups (Muslim or otherwise), or individuals with religious affiliations”(See: Abuse of Process: Blogger, Unrelated to Action, Hit With Subpoena).

I, and many others, suggested sanctions might be in order and, lo and behold, the judge agreed. (See: Subponea on Blogger Seidel Quashed; Attorney Shoemaker May Be Sanctioned) I can’t be the only one waiting to see the justification for what appears to be religious fear mongering, among other issues in a subpoena that seems dedicated to harassing Seidel.

So that brings us to today and Weird Move #2, wherein Shoemaker hires local counsel in New Hampshire to defend him against the potential for sanctions, that he was ordered to do within 10 days. And local counsel, to no great surprise, needs more time to respond due to the press of business. A perfectly reasonable thing to ask, mind you, and an application 99% of judges would grant. Except for some itty, bitty, little details.

In the motion papers, one of the new lawyers (John McHugh, based in New York) decides to take this pot-shot at Seidel instead of just asking for more time:

[Seidel] and her associates have done more than comment on these positions; they have taken action to discredit the Sykes family, Lisa Sykes as a minister of the United Methodist Church, and witnesses who have given support to the family’s positions. They have interfered with these witnesses’ professions, professional relationships, and economic opportunities.

Last time I checked, the First Amendment hadn’t been repealed. Criticism is fair game.

But wait, there’s more! After slamming Seidel, the new counsel then goes on to admit that:

However, your Declarant is new to this case and to Ms. Seidel, and while I have been attempting to gather the information needed, I have been unable to complete that
task due to the press of other work as well as the fact that Mr. Shoemaker has either been in hearings or preparing for imminent hearings, all in other cases, or taking third-party depositions in this action since he received this order. While I have interviewed some victims of Ms. Seidel’s activity, I have not yet been able to gather the material I would need to show the Court the justification for the Subpoena and its scope. (Emphasis added)

So Weird Move #2 actually manages to include a few different issues:

  • Why is it necessary to look for justification for the subpoena after it was issued?
  • Other than talking to Shoemaker, who must have already had justification before the subpoena was issued, why would it be necessary to interview any other witness? It’s only Shoemaker’s rationale that matters to the sanctions motion.
  • If Shoemaker has no time to talk to his counsel about Seidel and the subpoena because Shoemaker is up to his eyeballs in hearings, why is local counsel trash talking Seidel in the motion papers?

Shoemaker seems to be speeding toward a sanction. Here’s the motion: SykesMotion.pdf

 

April 22nd, 2008

Subponea on Blogger Seidel Quashed; Attorney Shoemaker May Be Sanctioned

I wrote a short while back about an outrageous subpoena issued by a lawyer to autism blogger Kathleen Seidel (See, Abuse of Process: Blogger, Unrelated to Action, Hit With Subpoena). It was outrageous because she wasn’t a part of the suit, and the attorney that issued it requested all kinds of documents and financial information regarding her blog on autism and her views on whether autism was related to vaccines. The subpoena, if you can believe it, even demanded documents regarding her religious affiliations, “Muslim and otherwise.”

And I urged the judge to impose sanctions. As did scores of other bloggers.

So here is the update: The subpoena has not only been quashed, but attorney Clifford Shoemaker, who issued the subpoena, must now show cause why he shouldn’t be sanctioned.

I can’t wait to see Shoemaker’s response. I’d love to see his justification.

It’s worth noting that Public Citizen decided last week to represent Seidel. But the order to quash came so fast, and the PACER file shows no evidence of a filing from them, that is appears the result is from Seidel’s own work in representing herself pro se.

Well done!

Update 1: Seidel was not the only one to be targeted by Shoemaker. He also went after Dr. Marie McCormick, a Harvard professor who also is not involved in the litigation.

Update 2:

  • Quashed! (Respecful Insolence)

    Extensive comments here

  • Take THAT Ass-Hat (Legal Satryicon):

    Law school – 3 years of your life. Time to write a really stupid subpoena – 15 minutes of your life.
    Duration of the stench that sticks to you when you are the idiot who got Rule 11 PWNED by a pro-se litigant — the rest of your life.

  • Judge Quashes Subpoena to Blogger Kathleen Seidel, Orders Lawyer to Explain Justification for Subpoena (Citizen Media Law Project)

    Shoemaker will have a difficult time explaining why the subpoena he issued is justified, as it demands the disclosure of documents that appear to have no relevance to the Sykes litigation. Instead, it is rather obvious that the subpoena was intended to coerce a critic of his clients to “shut up.”

  • Vaccines, Autism, A Blogger & Free Speech (Pharmalot)

    This marks the second recent instance in which a blog has come under attack for pursuing contentious topics in which consumers are battling drugmakers.

  • Quashed! (Pure Pedantry)

    Mr. Shoemaker now has a little legal problem. See the tiny tear fall down my cheek.

 

April 10th, 2008

Wachtell and Judicial Ethical Violations in New York’s Judicial Pay Raise Suit?

Yesterday Chief Judge Judith Kaye brought a lawsuit for long sought judicial pay raises on behalf of the New York judiciary. In doing so, some ethical issues now present themselves based on the free legal services offered to the judiciary by Wachtell Lipton, an issue quite apart from the more obvious question of how any judge that is part of the plaintiff’s class can actually hear the case. (Those issues are covered today at Judicial Reports.)

Now here are the other ethical questions:

1. Wachtell Lipton is representing the Chief Judge pro bono through Bernard Nussbaum, former chief counsel to Bill Clinton. But isn’t that type of free representation a gift, and a very substantial gift at that, in violation of the ethical rules? According to New York’s Disciplinary Rule 7-110:

A lawyer shall not give or lend anything of value to a judge, official, or employee of a tribunal except as permitted by the Code of Judicial Conduct, but a lawyer may make a contribution to the campaign fund of a candidate for judicial office in conformity with the Code of Judicial Conduct.

So what does the Code of Judicial Conduct say? Here it is:

(5) A judge shall not accept, and shall urge members of the judge’s family residing in the judge’s household not to accept, a gift, bequest, favor or loan from anyone except:

(a) a gift incident to a public testimonial, books, tapes and other resource materials supplied by publishers on a complimentary basis for official use, or an invitation to the judge and the judge’s spouse or guest to attend a bar-related function or an activity devoted to the improvement of the law, the legal system or the administration of justice;

(b) a gift, award or benefit incident to the business, profession or other separate activity of a spouse or other family member of a judge residing in the judge’s household, including gifts, awards and benefits for the use of both the spouse or other family member and the judge (as spouse or family member), provided the gift, award or benefit could not reasonably be perceived as intended to influence the judge in the performance of judicial duties;

(c) ordinary social hospitality;

(d) a gift from a relative or friend, for a special occasion such as a wedding, anniversary or birthday, if the gift is fairly commensurate with the occasion and the relationship;

(e) a gift, bequest, favor or loan from a relative or close personal friend whose appearance or interest in a case would in any event require disqualification under section 100.3(E);

(f) a loan from a lending institution in its regular course of business on the same terms generally available to persons who are not judges;

(g) a scholarship or fellowship awarded on the same terms and based on the same criteria applied to other applicants; or

(h) any other gift, bequest, favor or loan, only if: the donor is not a party or other person who has come or is likely to come or whose interests have come or are likely to come before the judge; and if its value exceeds $150.00, the judge reports it in the same manner as the judge reports compensation in Section 100.4(H).

So that leaves one exception: Section 100.4(H). What is that? It follows at the same link. And the point of the regulation is that payments to judges should not “give the appearance of influencing the judge’s performance of judicial duties or otherwise give the appearance of impropriety.” And I can’t see how a gift that is worth many hundreds of thousands of dollars in legal fees, or over a million the way BigLaw likes to bill, would not give the appearance of impropriety. There are exceptions in that section, with a reporting limit of anything over $150. I don’t see any exception that fits this type of gift.

2. Next question: Did Judge Kaye commit an ethical violation by accepting such a gift from Wachtell Lipton on behalf of the judiciary?

3. And now on to Wachtell’s own problem: Will those who are litigating against Wachtell in New York’s state courts now move to have the firm disqualified because of their gift? At the very least, a horrible perception will arise when any Wachtell lawyer steps into the courtroom in any case to appear in front of his own client, with its apparent conflict of interests. I have to assume that anyone litigating against Wachtell will now look into making motions to disqualify the firm.

Now this is not an argument against judicial pay raises. Far from it. I think our judges are badly underpaid and have deserved he increase for many years. No, this goes only to the manner in which they are going about it by accepting a major gift from a law firm that litigates in front of these same judges, who are now their clients.

Even if the legal services fall into some legal loophole, and I haven’t seen it yet, it still seems to smell. Especially if I were a litigant where Wachtell was on the other side.

And one other, unrelated, issue. Among the defendants is the State of New York. But the State can only be sued in the Court of Claims, not the Supreme Court. Why did Wachtell, with the approval of the state’s top judge, bring the action in a court where it is not permitted to do so? (Explanation here: Doh!)

See also:

 

April 4th, 2008

Abuse of Process: Blogger, Unrelated to Action, Hit With Subpoena

If you haven’t heard about Kathleen Seidel, you will now. She’s a New Hampshire blogger and writer about issues of autism at her site Neurodiversity. And while she has no direct connection to the Virginia lawsuit Sykes v. Bayer, plaintiff’s counsel Clifford Shoemaker has nevertheless hit her with a subpoena.

I don’t generally like to write “me too” posts for things broadly covered by others. But when some piece of abusive conduct takes place within the legal system — one that not only affects the individuals involved but can set ugly precedents for those of us that write freely under the protections of the First Amendment — then my reticence to type must be supplanted by an emphatic joining of the chorus of condemnation.

Just to be clear here, this post isn’t about whether the underlying lawsuit is a good one or not. The suit apparently deals with whether mercury additives to vaccines caused the plaintiff’s autism. I haven’t read it. This is about going after the citizen-journalist for having the audacity to speak freely on a subject.

She has produced her own motion to quash the subpoena. And here are the nuts and bolts of Shoemaker’s outrageous demands, made merely because she is writing on the subject:

The subpoena commands production of “all documents pertaining to the setup, financing, running, research, maintaining the website http://www.neurodiversity.com” — including but not limited to material mentioning the plaintiffs — and the names of all persons “helping, paying or facilitating in any fashion” my endeavors. The subpoena demands bank statements, cancelled checks, donation records, tax returns, Freedom of Information Act requests, LexisNexis® and PACER usage records. The subpoena demands copies of all of my communications concerning any issue which is included on my website, including communications with representatives of the federal government, the pharmaceutical industry, advocacy groups, non-governmental organizations, political action groups, profit or non-profit entities, journals, editorial boards, scientific boards, academic boards, medical licensing boards, any “religious groups (Muslim or otherwise), or individuals with religious affiliations,” and any other “concerned individuals.”

She has argued First Amendment protection and journalistic protection among other factors. I urge you to read the link above for her self-drafted motion to quash.

But there is one thing she didn’t do, and I suggest it here. She didn’t explicitly ask for sanctions. But that should not stop a judge from imposing them, even if the growing chorus of blogospheric condemnation makes Shoemaker rethink his strategy (and his Google reputation) and withdraw the outrageous subpoena. A litigant need not ask for sanctions under Rule 11 for the court to act.

Under Chambers v. NASCO, decided by the Supreme Court in 1991, the court held that because federal courts have the inherent power to manage their own proceedings and to control the conduct of those who appear before them, they also have the inherent power to punish conduct which abuses the judicial process. This may occur when a party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons. And that seems to fit the bill here when a litigant goes after a non-litigant with a subpoena that he knows cannot stand scrutiny.

Go get ’em.

Update, 4/22/08: Subponea on Blogger Seidel Quashed; Attorney Shoemaker May Be Sanctioned

Other commentary (hat tip Overlawyered):

  • Kathleen Seidel’s Blog: Influence Means You Get Subpoened (Law and More):

    If the motion isn’t granted, then we bloggers have to think twice before we take on specific lawyers.

  • Neurodiversity Blogger Unfairly Subpoenaed (The Voyage):

    I also think, like every previous attempt to persecute a blogger without just cause, this will go badly against Sykes and Shoemaker. Haven’t they heard of the Streisand effect?

  • Vaccine-Litigant Thuggery: Subpoenaed For Blogging (Popehat), with this money quote:

    Mr. Shoemaker, shame on you. You bullying is contemptible, and if there is any justice in this situation, you will get your critic-intimidating, oversensitive ass handed to you in the motion to quash.

  • Kathleen Seidel Has Received a Sub-Poena… (Holford Watch):

    The subpoena is eye-wateringly intrusive and is clearly intended to intimidate

  • Evidence of Slime (Grey Matter/White Matter)

    I know it’s not fair to make snide remarks about lawyers as if they were all bad. But this is bad. This is the kind of repulsive, nauseating, slimy behavior that gives lawyers a bad name.

  • Blogger ensnared in hotly contested autism-vaccine lawsuit (Ars Technica):

    One of those lawsuits has now embroiled an autism blogger, Kathleen Seidel, and her attempts to stay out of it may wind up testing constitutional issues and the role of citizen-journalists.

  • Subpoena sleaze (Marc Randazza at Legal Satryicon) 4/10/08:

    Hopefully the judge will be one of the rare few with the chram to actually make Rule 11 mean something.

  • Cyber-Slapp (James Taranto, WSJ) – 4/10/08:

    Assuming that Seidel’s representations are accurate, this is a classic Slapp, an acronym for “strategic lawsuit against public participation.” Such legal actions may become more common as citizens increasingly participate in public debates by way of blogs and other Web media.

  • Blogger Kathleen Seidel Fights Subpoena Seeking Information About Vaccine Litigation (Citizen Media Law Project – Berkman Center for Internet and Society) – 4/11/08:

    We’ve been following the subpoena issued to Kathleen Seidel in the Citizen Media Law Project’s Legal Threats Database, but thought it was time to throw our support behind Seidel and post about this egregious attempt to chill online speech. (Sykes v. Seidel)

  • Blogger Subpoenaed (Floor9.com), 4/11/08:

    What becomes blisteringly apparent from the start is that it’s simply meant to overwhelm the blogger with ridiculous requests for irrelevant information, presumably in the hopes that the blogger will simply throw up her arms in dispair and print a retraction.