Category Archives: Judiciary

 

January 28th, 2007

More on the need for civility in court…

Howard Bashman (How Appealing) comments today in a nice article at Law.com (Decorum on Appeal: When Judges Are Under Attack) on the recent Utah Supreme Court decision to sanction a law professor $17,000 for the disrespect he showed to the appellate court below. I wrote about this on Friday, with a link back to the ABA article on the subject.

Bashman’s treatment of the subject is good reading for anyone that intends to litigate anything.

What was also interesting about the decision is that the court didn’t decide the merits of the appeal. I suppose, theoretically, there is a legal malpractice case there as a result of the client losing his case like that. But in order to prevail, the plaintiff must ultimately end out back in the Utah Supreme Court and get a reversal of the lower appellate court ruling.

That sounds like a long, miserable experience, and judicial economy doesn’t seem to be served here without a decision on the merits when it first appeared before the court.

 

January 27th, 2007

New York’s New Attorney Ad Rules and First Amendment Issues

In an article slated for this Monday’s edition of the New York Law Journal, Eugene F. Pigott Jr., now a judge of the New York Court of Appeals, discussed how practitioners for the first time had input in formulating the new disciplinary rules regarding advertising and solicitation. Approximately 100 attorneys and virtually all of the major bar groups expressed concerns, which are reflected in the final product.

But while the article provides a nice summary of the judiciary-bar collaboration, I found Judge Pigott’s constitutional comments of most interest:

Pigott said he had no constitutional concerns with the original, more restrictive proposal even though it promptly sparked threats of litigation.

“We are a monopoly,” Pigott said. “We have a right to practice law, and no one else can. In return for that monopoly, we give up certain rights.”

While the courts may be able to regulate speech in some regard due to the monopoly, that doesn’t cure the problem of rules that are vague or over broad. I discussed this several days ago with respecting the fact that any prominently displayed photograph of an attorney may be violative of the rules, because it is “exhibiting characteristics clearly unrelated to legal competence.” It is certainly not the only place where ambiguity lies, as others have discussed (see links at that prior post).

Defining speech isn’t easy when the First Amendment comes in to play. Perhaps the courts will try to rely on Justice Potter Stewart’s famous 1964 definition of pornography:

“I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.” Jacobellis v. Ohio (concurring opinion)

We are unlikely to have heard the last on the subject:

Pigott made clear that he would have imposed stronger restrictions on attorney advertising and cautioned that the latest changes do not necessarily represent the last word. He urged attorneys to keep in contact with their presiding justice and to build on the cooperation that developed during the evolution of the advertising rules.

 

January 26th, 2007

Attorney Sanctioned For Disrespect

Sometimes emotions get in the way of legal argument. Which apparently happened here. From the ABA Journal comes this cautionary tale of a law professor that became “terribly angry” when he lost in the Court of Appeals because of factual errors and appealed to the Utah Supreme Court.

Sanctioned for ‘Disrespect’
Utah high court tosses case because of inappropriate appeals brief

Anger may cost a Utah law professor some $17,000 in attorney fees, and he believes the punishment is just.

Yet Boyd Kimball Dyer of Salt Lake City also thinks the Utah Court of Appeals was wrong and his case should be reheard.

A unanimous Utah Supreme Court says it won’t consider Dyer’s arguments because his briefs included “a substantial amount of material that is offensive, inappropriate and disrespectful” of the appeals court. In a Jan. 12 decision, the supreme court struck Dyer’s briefs, affirmed the appellate ruling against his client and assessed attorney fees. Peters v. Pine Meadow Ranch Home Association, No. 20050806.

…

In briefs filed with the Utah Supreme Court, the University of Utah S.J. Quinney College of Law professor wrote that “good judges never fabricate evidence,” and that the appellate court opinion was “no innocent mistake.”

“So, if a court fabricates evidence, whether intentionally, negligently or through innocent mistake, it destroys the moral premise of the legal system,” Dyer wrote. “A judge who fabricates evidence, even from a sincere motive to do justice in a particular case, has no moral standing whatsoever.”

The Utah Supreme Court cited those statements when it denied Dyer’s petition in the consolidated appeal — on the basis of his behavior rather than on the merits.

There’s more at the link, including the Utah Supreme Court’s comments.

 

January 25th, 2007

A Response to Justice Scalia on Bush v. Gore

In handling a Bush v. Gore question from the audience at Iona College the other day, Justice Scalia said:

“It’s water over the deck — get over it”

But the suspension of democracy in Florida in 2000 is not something to “get over” any more than other poorly decided Supreme Court decisions such as:

  • Plessy v. Ferguson’s holding that “separate but equal” race discrimination was OK, or the
  • Dred Scot decision holding that slaves could not sue in federal court since no slave or descendant of a slave could be a U.S. citizen, or
  • Korematsu v. United States, holding that U.S. citizens of Japanese ancestry citizens could be summarily relocated to detention camps during WW II based solely on their race.

In fact, Bush v. Gore was worse than all three. For each decision above could be overturned by the voters either in Congress or by constitutional amendment. But since Bush v. Gore dealt with the actual disenfranchisement of voters, it could not. All legally cast ballots should have been counted.

Bad judicial decisions are not something to “get over,” but are mistakes to be learned from.

 

January 24th, 2007

Is My Family Photograph An Ethical Violation in New York?

Does my family picture show “characteristics clearly unrelated to legal competence?”

Is it possible that this backyard snapshot, which appears on the bio page of my law firm’s web site, subjects me to New York’s new disciplinary rules?

The new rules on attorney advertising have an interesting quirk, the ramifications of which I have not yet seen discussed:

DR 2-101(22 NYCRR 1200.6) provides in part, that “An advertisement shall not:
…

(c)[5] rely on techniques to obtain attention that demonstrate a clear and intentional lack of relevance to the selection of the most appropriate counsel including the portrayal of lawyers exhibiting characteristics clearly unrelated to legal competence;

According to a New York Law Journal article from January 8th:

That provision was added partially in response to advertisements run by a Long Island, N.Y., attorney who permitted herself to be filmed in provocative poses to tout her real estate practice. Those ads generated complaints from Long Island practitioners who noted that the attorney’s cleavage had nothing to do with her legal abilities, officials said.

Having now stepped on to the slippery slope of restricting attorney speech on how we portray ourselves, we must ask a couple questions:

Must photographs be the boring suit-and-tie shot you see on my firm’s home page? What does any picture have to do with “legal competence?” After all, a picture only identifies your race, sex, age and attractiveness. What does that have to do with competence?

At the risk of possible official reprimand, I’m keeping my family picture where it is. I’m basing it on the fact that, among other things, it does not reside on my home page but on a biography page, and is at the bottom of the page to boot. So I think, therefore, that it is not what they mean by “techniques to obtain attention.” You have to search a bit to find it.

But what if the appellate judges that made these rules meant otherwise? How, exactly, are we to know which informal pictures are OK and which not? Or if any picture at all is permitted?

Other links for the New York attorney advertising issues: