Sunday, December 29, 2013

Judicial blogger appears on NTNM

The final round of BCS bowl games will get nearly all the viewers this week, but North Town News Magazine gamely counterprograms with a program including this interview of a cranky old lawyer and judicial blogger.

My thanks to NTNM host and moderator Avy Meyers and his entire technical crew Sonny Hersh for allowing me to repost this interview. You could, in theory, watch this interview when the show is broadcast in its entirety on CAN TV 19 in Chicago on Thursday, January 2 at 7:30 p.m. (that's when Alabama and Oklahoma are scheduled to kickoff in the Sugar Bowl) or Friday, January 3 at 2:30 p.m. This NTNM program will also air in Evanston on Thursday at 5:00 p.m. and Sunday at 10:30 p.m. and on a number of suburban cable systems on Monday, January 6.

Wednesday, December 18, 2013

Two stories on ABA Journal Law News Now illustrate the ongoing split in the legal profession

A story caught my eye on ABA Journal Law News Now as I sat at the computer in my den, checking my email and messages from what amounts to my 'home office.' The headline on the post by Debra Cassens Weiss was "Work-at-home lawyer suspended partly for lack of a 'bona fide office'." (I'm home, for the moment, because I have to go to Wisconsin this morning to pick up my youngest son from college.)

I clicked over to read the sad story of Delaware practitioner Fred Barakat, a Pennsylvania resident who had a Wilmington office address in a suite that sounds something like the kind of set-up advertised by Regus (or any of the other 'virtual office' providers) for Chicago lawyers. Having a 'virtual office' is still legal in Illinois -- even where one's attendance at is (like Barakat's) "sporadic and unscheduled" -- but Delaware Supr.Ct. R. 12 requires lawyers to have a "'bona fide' office." A Delaware lawyer complies with this rule by being in the office for "a substantial and scheduled portion of time during ordinary business hours in the traditional work week." A temporary absence (as for a trial, say) does not violate the rule, but the office must be equipped with the "customary facilities for engaging in the practice of law" and must be "more than a mail drop, a summer home which is unattended during a substantial portion of the year or an answering, telephone forwarding, secretarial or similar service."

(What are the customary facilities for the practice of law anyway? A yellow pad or two, some pens, a computer, some law books? My den qualifies on these counts. Abraham Lincoln used to say that his stovepipe hat was his office. Of course, ol' Abe never tried to practice law in Delaware.)

At any event, despite the headline, Mr. Barakat's suspension was not caused solely by his attempt to cut overhead by working from home as much as possible. See, In re Barakat, --- A.2d ---, No. 397, 2013 (Del.Sup.Ct. 12/11/13). Still, a substantial portion of the Delaware court's opinion is devoted to Barakat's office arrangements.

The default sidebar on the ABA Journal Law News Now is a list of the stories most read on the site. My wandering eye noticed this headline there, "More Top Lawyers Break Through $1,000 Hourly Billing Barrier." It turns out that this was actually a 2011 story, also written by Debra Cassens Weiss.

Mr. Barakat, trying to work from home to save the cost of renting an office, and these $1,000 an hour superstars are all allegedly members of the same learned profession.

It's increasingly hard to believe.

Monday, December 16, 2013

Iowa lawyer disciplined after getting caught up in Nigerian inheritance scam

Somehow this old cartoon from the webcomic
Married to the Sea seemed very appropriate here

By now you may have heard about Robert Allan Wright, Jr., the Iowa lawyer who was disciplined December 6 by the Supreme Court of Iowa after getting involved in a Nigerian inheritance scheme. (Iowa Supreme Court Disciplinary Board v. Wright, 2013 Iowa Sup. LEXIS 123 -- this link will get you to the court's opinion, but only until Groundhog's Day).

Wright did not respond to a spam email from the widow of a hitherto unknown "Nigerian general;" he had a flesh and blood client sitting in his office who claimed he'd come into an enormous inheritance from a long lost cousin.

Granted, Wright was representing the client, a man named Madison, in a criminal matter. And, yes, Madison's allegedly dead cousin was in Nigeria. But all Madison had to do, he told Wright, was pay $177,660 in inheritance taxes due and owing; that, and procure an "anti-terrorism certificate," and the very next thing you know, he would come into $18.8 million. For his part in facilitating the transfer, Wright would be paid 10% of the amount recovered.

Apparently it never occurred to Mr. Wright to suggest that the amount of "tax" due be simply deducted from the payout. If it did occur to him, the scammers persuaded him that things could not be done that way.

The Iowa Supreme Court made it clear that Wright was not being disciplined for his mere credulity (slip op. at 9):
Wright is not the first Iowa lawyer who has become entangled in a deception with ostensible Nigerian connections. See Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Jones, 606 N.W.2d 5, 9 (Iowa 2000) (noting the incidence of fraudulent transactions with purported connections to the country of Nigeria). Lawyers in other jurisdictions have also been entangled and deceived in such schemes in recent years. See, e.g., In re Maxwell, 334 B.R. 736, 738–41 (Bankr. M.D. Fla. 2005); Parker v. Williams, 977 So. 2d 476, 477–78 (Ala. 2007); Lappostato v. Terk, 71 A.3d 552, 559–60 (Conn. App. Ct. 2013); In re Reinstatement of Jones, 203 P.3d 909, 912–13 (Okla. 2009); see also Lucas v. BankAtlantic, 944 So. 2d 1031, 1032 (Fla. Dist. Ct. App. 2006) (describing a deception originating in Africa).
Instead, where Wright went wrong was in helping Madison to raise money for the "tax" by borrowing money from other clients, sucking them into the scheme. Essentially, he violated rules requiring competence in client representation by failing to see through the inheritance scam, he failed to disclose his pecuniary interest in the scheme to the clients from whom he solicited loans, and he failed to protect the interests of his clients from whom loans were solicited. (Slip op. at 9-13.)

But Wright did not intend to defraud anyone. The Disciplinary Board acknowledged that Wright "clearly believed in the legitimacy of Madison's inheritance." Even as the disciplinary proceedings exposed the folly of his hopes, Wright kept right on believing that "one day a trunk full of . . . one hundred dollar bills is going to appear upon his office doorstep," according to the Disciplinary Board. Wright's conduct might be delusional, the Board asserted, but not fraudulent. (Slip op. at 8-9.) Nevertheless, because of his ethical lapses, Wright will be suspended from the practice of law in Iowa for at least a year.

It's easy to pile on the unfortunate Mr. Wright: All of us receive dubious inheritance proposals and spurious contract claims on a daily basis. We don't fall for them. I've got three new ones in my spam just this morning -- one from someone who is "in the military unit here in Afghanistan" who wants a partner she and her partners can trust to move "some amount of funds" out of the country. It's all legal, my correspondent assures me. A Mr. Buba has $20 million that he wants to move from his country -- he doesn't say which country -- but he'll give me 40% just for arranging the transfer. And Barrister Joshua Yohana from Burkina Faso wants me to help him move $30,400,000 left behind in his country by the late Libyan dictator Muammar al-Gaddafi. The surprising aspect of this morning's spam is that there are no Chinese businessmen who have sure-fire, eight-figure collection cases I can handle for them; I've had a lot of those lately, too.

But... what else is in my email today? The National Law Journal sends me updates morning and evening about superstar lawyers concluding mega-deals. My Twitter feed regularly carries more locally-tinged, but similar, stories from Crain's Chicago Business. And the Chicago Daily Law Bulletin sends me an email every evening where I learn about the latest triumphs of my brothers or sisters in the local bar, many of whom I know.

I wonder if Mr. Wright had a similar experience: He may have seen that there are big cases out there, big deals, enormous paydays for his Iowa brothers and sisters in the law.

But there are only a few rock stars in the law; most of the rest of us are flailing away in garage bands. For every Beatles-like success story, how many thousands of other lawyers remain Quarreymen all their professional lives?

The discrepancies between the top and the bottom of the legal profession are wide, and widening daily. Judges may chafe at the rising tide of pro se litigants in our courts, but many lawyers -- good, competent lawyers who, at one time, would have been engaged by those persons now proceeding pro se -- are drowning beneath that tide.

Litigation has been priced beyond the reach of many prospective clients -- but it is not only they who have suffered as a result.

So, this morning, I can't pile on poor Mr. Wright. I can't condone what he did... but I can understand, perhaps, why he grabbed onto that thin tale of big money with both hands, and kept holding on.