Appellate Law & Practice

Which rules of professional conduct are violated the most?

Sure, some judges are biased, and only pretend to give the appearance of being unbiased.  Other judges come right out and say that they are biased in favor of the government. 

Some judges are boozehounds or just plain nutty.

Sure, some lawyers do not represent their clients with competence.  Remember if you don't read all Supreme Court cases, all cases from Circuit Courts of Appeal and all cases from your state, you are behaving unethically and need to self-report yourself to the bar.  Failing to self-report makes you even more unethical.  Obviously you must read unpublished decisions, too.  While 95% of all lawyers comply with this basic requirement, the 5% that don't are a black mark on our profession and hate the USA. We all look bad knowing that there are lawyers that go home at night without having read today's cases. 

There are also lawyers that work for temp agencies.  While I don't know if they are violating any rules of professional conduct, they might as well be since everyone hates their guts.  In the words of one member of the Federalist Society, "Contract Attorneys are Stupid."

But, here is my nomination for the most ignored rule of professional conduct.  Actually, it turns out most states don't have it.  But a few do.  MD. R. Prof. C. 8.4(e) reads:

It is Professional Misconduct for a lawyer to:

(e) knowingly manifest by words or conduct when acting in a professional capacity bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status when such action is prejudicial to the administration of justice, provided, however, that legitimate advocacy is not a violation of this paragraph.

Wait a minute!  Maryland lawyers can't say they hate the poor? They can't say that the poor are lazy?  Oh, but it is perfectly okay for Maryland prosecutors to prosecute the poor for acting like poor people?  Isn't that a little prejudicial to the administration of justice.  Or does prosecuting poverty get a free pass because it is "legitimate advocacy"?

Does this mean that making the argument that a Terry stop was justified because it was in a "high crime neighborhood" is unethical?  I sure hope so.  But then again, the closest I get to Maryland is New Jersey when I can't navigate my yacht correctly and I have to have to Coast Guard rescue me from a certain case of poor-people cooties.

   But does this mean it is a violation of the rules of professional conduct to refuse to hire lawyers that went to law schools that cater to the poor, or law students that act like they never went to a restaurant better than Outback Steak House.  Now, surely the practice of trying to ascertain whether a law student has "poor people social skills" or "rich people social skills" is prejudicial to the interests of justice.

PS: To all you Furries and Overlawyered readers there that keep writing me notes, I don't have time to respond to all of them.  Nevertheless I look forward to reading about your views about this blog.  Unfortunately, I don't have time to answer all of your comments, but I hope to post some of them to this blog soon.

In the fursuit of justice

Dear AL&P, All you talk about is law.  Why don't you get out there and do something else?

Good idea.  It turns out there are a lot more things out there besides law.  Here are two of them:

• Feminists complaining about blog comments made by males
• Furries

Thank you for your suggestion.  I am glad I ventured out on the information superhighway.

Update: The Saucy Vixen (friend of the blog) is now live in the internets.

CA1: no emotional damage for age discrimination

Collazo v. Nicholson, No. 06-2678 (7/24/08).  This is an age discrimination complaint seeking damages for mental and emotional distress against the VA.  While it was booted on summary judgment, the First says affirms on an alternate ground, saying that the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634.  After going out of its way to show why it thinks that plaintiff is a jerk (which is really impossible to verify one way or the other), the First says that damages for mental and emotional distress are not available.  Only pay and equitable relief. 

CA1: cooperating gullible convicts get what they deserve

US v. Mulero-Algarin, No. 07-1701 (7/24/08).  After the defendant plead guilty and was sentenced he arranged to provide the government some information.  A couple of feds traveled to interview the defendant, but for some reason the interview never happened.  Nevertheless, he thought he had an agreement.  The government thought he was gullible.  “The chief of the office's criminal division rejected his overtures. She took the position that the defendant's assistance had not been "substantial" and, thus, did not warrant the filing of a Rule 35(b) motion to his behoof.”

Selya agrees and the District Court agree.  The guy is gullible.  Gullible people stay in jail.  Only if there is an unconstitutional motive for misleading a defendant can the courts intervene (says Selya).  Therefore, justice is done.

Selya does use a lot of big words, in order to ensure the gullible guy in jail that at least one judge knows how to use a dictionary.  Justice is done.

CA1: forfeiture in employee stock plan okay

Weems v. Citigroup. No. 06-2565 (7/24/08).  This is a pretty large MDL case, in which the plaintiffs claim that it is wrong for their employer to give them the option of receiving part of their salary as stock (at a discount rate), but requiring them to forfeit said stock if they “voluntarily” leave the company before they “vest” (usually after two or three years). 

Despite the fact that most of the people involved in litigating this issue probably tell everyone they meet that they work in “securities” this comes down to a fairly straight-forward contract claim.  Not really that glamorous.  The First says that there was no breach of a contract. 

Someone found a memo which says that the purpose of this thing is to punish people that go work for competitors, and therefore it is an unlawful restrictive covenant.  (There are far, far, worse things companies do to their employees.)  But the First says this is fine, because forfeiture occurs whether or not they work for a competitor.  This doesn't really ring true, and it seems they are not taking this part of the argument too seriously.

Similarly, the First treats the rest of the common-law contract claims (under Florida law) with almost no degree of seriousness. 

Another one of Judge Bybee’s Torture Memos released

A lot of people ask me how you become an appellate judge.  The answer is to write a torture memo.   Or three.  If you really torture, you write even more.   I note that the blue-booking is impeccable, and therefore his legal reasoning is great.

Unfortunately, because there are so many redactions, it is difficult to tell if the entire memo has prefect grammar and style, so it might be that the government is hiding the fact that Bybee wasn’t detail-oriented and went to a TTT.

CA1: Armenian petition denied

Kechichian v. Mukasey, No. 07-1584 (7/23/08) denies an asylum petition from an Armenian whose father ran afoul of the government.  The IJ found no nexus between the petitioner’s woes and her father’s woes.  The IJ and BIA rejected that, and the First seems to accept this uncritically. Before the IJ she didn’t raise the argument that petitioner claims that she is a member of a social group – people with mental illnesses.  The BIA didn’t address that because “we are an appellate body.”  (Whatever.  There is a reason people don’t take the BIA seriously.)  The First doesn’t look at this, and says there isn’t a due process argument.  And, it says a denial of a remand to look at that new evidence wasn’t an abuse of direction. 

CA1: due process issues in Bankruptcy reorganizations

Arch Wireless, Inc. v. Nationwide Paging, No. 07-1611 (7/23/08).  Arch went into Chapter 11.  It received a discharge.  Nationwide is a debtor seeking to enforce some clams against it.  Nationwide claims it wasn’t given adequate notice.  Arch says that Nationwide wasn’t a “known” creditor, and besides it knew of the bankruptcy proceedings, anyway.

The Bankruptcy Court said that Arch knew that Nationwide was about to sue them, as there was an ongoing dispute complete with specific written claims.  Nevertheless, the actual accounts of both companies didn’t reflect amounts owed in the way that Nationwide claims they are.

The First notes that the Bankruptcy Code doesn’t really provide the remedy for failing to inform a creditor of an impending reorganization.  So, the First looks to constitutional due process principles.  Applying New York v. New York, N.H. & H. R. Co., 344 U. S. 293 (1953), the First says that Nationwide should have been included on the list.

CA1: gender discrimination case lacks smoking gun

Garcia v. Bristol Myers Squibb, No. 07-2723 (7/23/08) affirms a grant of summary judgment (first rejected by a magistrate judge) to the defendant in a gender discrimination case.  The First says that the facts don’t support a disparate treatment claim, and contains no “smoking guns” (though some inconstant statements).  While this would seem to be a run-of-the-mill gender discrimination failure, I wonder why the magistrate thought otherwise. 

CA1: Logan gets to build its taxiway

Winthrop, MA v. Federal Aviation Administration, No. 07-1953 rejects a challenge to an order by the FAA letting Logan Airport build a new taxiway.  This seems to all come down to a question of whether the FAA properly decided not to prepare a supplemental Environmental Impact Statement under NEPA 42 U.S.C. § 4332(c).   There are some interesting issues there regarding what makes airports late and loud.  The new taxiway is already being built.

After finding Art. III standing, the First finds that it wasn’t arbitrary and capricious to conclude that the FAA wasn’t presented with significant new information.  The rest seems to be affirmed largely on the facts regarding what noise models to use.

Then the first concludes by bashing the petitioners when they move to supplement the record with additional documents.  But, in doing so, the First does some funny stuff.

It writes:

the petitioners would like included forty-six documents which the FAA has withheld in response to a Freedom of Information Act ("FOIA") request filed by petitioners. In an entirely separate proceeding regarding this FOIA request, a district judge has reviewed those forty-six documents in camera and agreed with the FAA that the documents pertain to internal deliberative processes and were properly exempted from disclosure under FOIA. Petitioners have appealed that ruling as a separate matter, not presently before us. Documents pertaining to internal deliberative processes are irrelevant to this petition.

Wait?  Is the First really saying that even though the FAA refused to produce some documents, and the petitioners are proceeding under FOIA, it can’t hear this issue.  I mean, what if these documents show that the FAA wasn’t exactly playing with a good deck.