Ethics

Professionalism on Appeal


One of the many hats I wear at Miller & Zois is that of our in-office appellate specialist. What that really means is that I handle all of our law firm’s personal injury cases that wind up being appealed, and that I accept referrals (from other lawyers only) to handle civil appeals of all types.

One thing I see over and over is briefs from the other side that make the ill-advised choice to attack the trial judge or trial counsel. And I don’t mean with reasoned legal arguments, I mean things that are over-the-top, like allegations that the judge was biased, or ad hominem attacks on the opposing party or their counsel. There are a lot of things wrong with doing that, but the two main ones are 1) it’s unprofessional and 2) making yourself look like a jackass isn’t very persuasive.

If you handle appeals on a regular basis, you should take a look at “Professionalism On Appeal: The Good, The Bad and the Ugly”, an article by Howard J. Bashman, a Philadelphia-area appellate specialist. I think he sums it up nicely by saying: “Indeed, expressing animosity toward opposing counsel on appeal, or toward the trial judge, usually proves to be counterproductive rather than an effective strategy for victory.”

Take a look at his article. I think it’s a refreshing take on the way appellate litigation should be practiced.

Don’t Forget About Your Witnesess When the Case Settles


I just reached a settlement in a case that was set for trial next week. Obviously that is great news for my client, who now has some closure on a difficult period in his life.
But memorializing the agreement and having the clerk remove the case from the docket doesn’t mean the end of my job when it comes to settlement.

I had subpoenaed three witnesses to appear for trial: an independent “bystander” witness, a traffic engineer from the State Highway Administration, and a police officer. I made sure to contact each of these witnesses as soon as the case resolved to let them know they would not need to appear. They really appreciated that I let them know. The traffic engineer in particular made it a point to let me know how often attorneys subpoena witnesses from his office and then do not let them know when the case settles. Then they travel to court for nothing.

I can’t believe that. It’s just unprofessional, and arguably violates Md. Rule 2-510(h), which states that “[a] party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or cost on a person subject to the subpoena.” As far as I’m concerned, not telling a witness under subpoena that the case settled and they don’t have to appear causes the witness “undue burden or cost.”

So just a reminder, when your case settles right before trial, make sure to notify the witnesses. That way you can save them the hassle and missed time from work of showing up at court for no reason.

Is Being A Bad Lawyer An Ethical Violation?

The Legal Profession Blog has a post linking to a lawyer discipline case from New York where an attorney was suspended for two years after being sanctioned by the U.S. Court of Appeals for the Second Circuit. Even after the two years is up, he can only practice again after the entry of a court order allowing it.

This is a pretty serious sanction. What did he do? Steal from a client? Miss a filing deadline? Get a criminal conviction? Was he a tax cheat? Nope. He got suspended for being a terrible lawyer. The court noted that on multiple occasions he had submitted briefs of “shockingly poor quality.” Things like getting the names of his clients wrong, including irrelevant boilerplate, referencing evidence that was never submitted, and filing the work of a paralegal without reviewing it.

I am so happy to see a court take a stand like this. My practice is 100% litigation, and you would not believe the astonishingly poor quality of some of the written material I see submitted to both trial and appellate courts. I’m not talking about proofreading or citation errors. Everybody makes a mistake sometimes. I mean stuff so appalling that it is clear that no attempt was made to edit or even read it before filing.

I have a case now where opposing counsel has filed papers with the court certifying that pleadings and discovery were served on me three weeks before the date they were actually mailed to me. When I got them, they were unsigned and turned out to be mostly gibberish. The best part, and I swear to God I am not making this up, is that they were printed in the Comic Sans typeface. I asked twice, in writing, for the filing to be corrected so the court knew the correct dates I received the material. Nothing. It’s the most astonishing thing I’ve seen in 14 years practicing law. I’m now awaiting a ruling on my second motion for sanctions.

I wish courts were more active in policing this kind of thing. But the reality is that most of the time nothing gets done about it unless the behavior is particularly egregious or it is repeated often enough that eventually a judge ends up getting really mad.

More Advice for Dealing With Difficult Opposing Counsel

A few weeks ago, I wrote about how to handle certain kinds of obstructive behavior from opposing counsel at depositions.

Here is a great blog post by Jay Shepherd over at Above The Law on dealing with opposing counsel who do not play well with others. See, there’s at least one schadenfreude- free reason for us scummy, small-firm, personal injury types to read ATL!

According to Jay (and I think he’s right), the key is not letting them get to you. Because getting to you is the only way they win. Lawyers like this are like children who throw tantrums. If the tantrum doesn’t get a reaction, there is no reward for the tantrum-thrower. Consequently, the tantrums become fewer.

Does anybody else have suggestions or observations on how to handle opposing lawyers behaving badly? Let me know in the comments.

Insurance Company Complaint Gets Pain Management Doctor Suspended

Most lawyers handling cases involving permanent injuries and ongoing complaints of pain are familiar with the medical sub-specialty known as “pain management.” These doctors (often with experience in anesthesiology) concentrate in the management of long-term chronic pain. This is done by medication management and other methods. This is a legitimate medical specialty with its own certifying boards.
This kind of treatment is often viewed with some skepticism by insurers and juries. Anecdotally, I think this is because this treatment cannot result in a “cure” for whatever is wrong. Instead, it concentrates on making the patient as comfortable as possible by ameliorating the effects of painful permanent conditions. This leads to concerns that pain management treatment is not medically neccessary, or that it encourages drug-seeking behavior in patients.

Legitimate pain management doctors go to great lengths to establish medical neccessity, and to control concerns about drug-seeking by patients. They obtain records of past medical history, keep meticulate prescribing records, make patients sign treatment contracts, and often use urinalysis to monitor compliance. On the other hand, illegitimate pill-mill doctors have been known to omit these precautions, and will write endless streams of prescriptions for powerful narcotics, often based on nothign more than the patient’s say-so that it hurts. Most experienced personal injury lawyers have run into both kinds of pain management doctors. At least, I have.

Here is an order from the Maryland Board of Physicians summarily suspending a (not board-certified) pain management doctor. This doctor is alleged to have engaged in some of the unprofessional practices noted above.

What’s interesting is the source of the complaint- an investigator from Travelers Insurance Company.
Apparently, two injured workers in Travelers’ cases were being trated by this doctor. Travelers discovered that the doctor was not actually seeing the patients, the prescriptions were written based on the patients’ responses on a mailed form, and the payments for the services were mailed to the doctor’s home address. This was enough to get the Board to investigate, ultimately finding enough evidence about the treatment of 12 patients to justify a summary suspension.

I have never seen something like this before. Now that I think about it, I am surpised I haven’t. If you think about the volume of claims for pain management that workers compensation insurers see, you would think that it would be enough for patterns to emerge for some doctors. And it would be in the insurer’s interest to a) not pay for these claims, and b) ensure that injured workers are seen by competent doctors. Of course, it will be a cold day in hell before Travelers makes a complaint about one of the doctors it hires to evaluate injured workers giving an unsupported opinion.

Helping Clients With Multiple Disabilities

I am representing a client who has been deaf from birth. Unfortunately, he also suffers from a brain injury. The combination of the two makes communicating with him challenging under the best of circumstances.

Most of us are familiar with the process of using an American Sign Language (ASL) interpreter to communicate with deaf clients. However, I just became aware of another sort of interpreter that is invaluable for communicating with deaf clients who also have diminished or different communication skills. This is a Certified Deaf Interpreter, or CDI.

ASL interpeters are hearing individuals who translate the spoken word into sign language. However, they are not able to communicate with deaf people as effectively as another deaf person can. This is because every person signs differently, and because sign is often augmented by gestures and expressions. A CDI is another deaf person who is certified as an interpreter. They assist the deaf client in understanding and responding to the translation of the ASL interpeter. This is particularly helpful for people who have communication difficulties beyond deafness, like a diminished mental capacity.

Here’s how it works. A question is spoken. The ASL interpeter translates the question into sign. The CDI signs the question again to the deaf client, and then takes the client’s signed answer and communicates it in sign to the ASL interpreter. The ASL interpereter then translates the answer into speech for the hearing participants.

It sounds cumbersome, and it is. It certainly adds to the time required for a deposition, for example. But having done depositions like this both with and without a CDI, I can say that for the right client, it makes a huge difference in the ability to communicate effectively.

Attorneys should also know that these kinds of reasonable accomodations are required by the ADA. Not only that, but the cost of these services cannot be passed along to the client as a case expense. My experience is that the deaf are generally aware of their rights, so you should not be surpised when you receive these sorts of requests. Afterwards, you will be glad you complied. It really makes a material difference in the quality of the representation.

This Lawyer is a Disgrace

Today’s paper has an article about a lawyer from Frederick County who has sued the state over an incident where he was arrested in the Court of Appeals building. According to this Baltimore Sun article, the regular bailiff was out, so he was replaced with a police officer from the state’s Department of General Services. When the lawyer arrived at the courthouse, dressed in a slovely fashion, he was asked to show ID. He refused, and lied to the officer. He said he left his ID in the car, when it was actually in his pocket. He was then arrested. The charges were dismissed for lack of probable cause. Now the lawyer has sued for $700k for his “wrongful” arrest.

This is the same guy I wrote about here, when he rudely interrupted a trial judge, showed tremendous disrespect, and stormed out of a courtroom while the judge was hearing the case. In a wrongly decided opinion, the Court of Appeals let him off the hook because the judge made some procedural mistakes in handling the contempt ruling.

It looks like he didn’t learn much. Perhaps he is correct that there is no legal requirement that you show ID when entering the Court of Appeals building. But a person entrusted with the privilege and responsibility of being a member of the Maryland Bar should know better than to handle it the way this guy apparently did. Just because you have the right to act like a jackass doesn’t make it a good idea.

From the cop’s perspective, what was going on? A man who was shabbily dressed and did not look (or apparently act) like a lawyer, was asked for ID and refused, and then proceeded to go upstairs where the judges’ chambers (and the clerk) are located. I can understand why this would cause the officer concern. Maybe the officer had no legal right to arrest this guy. But the lawyer completely brought this on himself by his own actions.

Now this story is on the front page of the local paper. When I go to court for a jury trial, to represent a real person, who had something terrible happen to them, my jury is going to be getting their views about lawyers from stories like this.

That offends me. In my opinion, this lawyer is a discredit to the profession. I think he is exhibiting a pattern of behavior that brings shame on the profession and harms public confidence in the legal system. Whether what he has done is legal or not, at a minimum it is disrespectful and shows an alarming lack of judgment. Based on what I have read, I think this gentleman should be disbarred. This is not the sort of publicity lawyers and the legal profession need or want.

I Don’t Think We’re Talking Kim K. & Ray J. Here

I have just discovered an interesting legal blog I hadn’t seen before. The Legal Profession Blog is written by four law professors and focuses on legal ethics and issues afecting the practice of law.

The blog links to an Ohio ethics opinion suspending a lawyer for two years, for get this, looking at dirty pictures and stories depicting consenting adults, in his home, with his wife. Apparently he was also convicted of a felony for obscenity under federal law. He served 15 months in federal prison and upon release got hit with a suspension from practicing law. His story is that his ex-wife broke into his home and stole his computer, and delivered it to the FBI in order to gain an advantage in custody lititgation.

When I saw this, I thought wait, what? Then I thought some more. I suspect there is more to this than the opinion lets on. There almost has to be. I don’t think that you get 15 months at Club Fed and a two-year suspension for Googling up the Kim K. sex tape. I mean, I doubt it gets you prison time if there are stories about it on TMZ.

This whole episode brings to mind Rule 34 of the Internet. Rule 34 states that if you can think of it, somebody, somewhere, has made porn of it.

Whatever this guy had on his computer had to be to the left of dirty, into the area of really, really dirty. I won’t speculate since I try to keep the blog PG-13. But you can. What kind of blue material both depicts only consenting adults, and would also support an obscenity conviction? Let your mind wander, it won’t take long. And when you are done you will think: “Gross!” But 15 months in prison, no more law license gross? For what you looked at on your computer, in your home, with your consenting adult wife?

So, lawyer readers, be careful what you look at. Not only might it make you go blind, you might go to prison and lose your license to practice.

I Have Met The Enemy, And He Is Us.

My fellow attorneys, write this down: “Offering legal services in exchange for sex is unethical.” And unlikely to succeed, if you look at this ethics opinion where a lawyer made such an offer, to two clients who happened to be lesbians. You, sir, are a genius. Enjoy your well-deserved disbarment. Disclaimer: Although this is more likely to succeed with non-lesbians, it is equally wrong and repugnant. Thanks, Walter Olson. I do not agree with you politically, but I agree unethical lawyers do everyone a disservice.


Justice Scalia trips and falls, but he is unharmed. Crap. This would have been the best slip/fall case ever, possibly even better than Judge Bork’s.
I love Judge Bork (not to be confused with Bjork). Great beard, (although not well visualized in the photo at right) and he reached the pinnacle of American achievement by becoming a verb.

Getting “Borked” now refers to defeating a judicial nominee by attackign his character and philosophy. And as an added bonus, it sounds kind of dirty.

Frivolous lawsuit category: AEG Live sues Mile High Music Festival concert bootleggers before they bootleg. “Yeah, we know what you are thinking, and it violates our copyrights.” How do you sue unknown individuals, because whoever they are, you know they are going to do something wrong, even though they haven’t yet? I think they were a “Mile High” when they hatched this idea.

“[J]udges do not have a right to use rude, demeaning and condescending speech toward litigants.” Now, where’s the opinion saying they do not have a right to disagree with good-looking, witty Plaintiff’s lawyers?

U.S. Magistrate Judge Peggy Leen Makes A Sanctions Order Sizzle

I have a lot of respect for federal magistrate judges. They spend their days handling settlement conferences, ruling on motions, and presiding over discovery disputes. Every once in a while, if they are lucky, the parties to a case will consent to a trial before a magistrate to liven things up.


Nothing sucks more than civil discovery disputes. Particularly those that involve deposition misconduct in the form of speaking objections, and motion papers inclusive of personal attacks. Here is the greatest court order I have ever seen (ABA Journal via ATL).

Judge Leen apparently got to this ruling too late to affect discovery in the case, but she’s not exactly apologetic about it. As she explains: “I am not the Maytag repairman of federal judges desperately hoping for something to do.” She thought so little of the merits of this dispute and the number of trees killed in its pursuit that she assigned her intern to read the 185 pages of transcripts submitted by the parties and to submit a memorandum. The intern was very quickly able to determine what the lawyers should have known- they were being bad.

Judge Leen isn’t exactly happy about the conduct, and describes how she would handle it in a perfect world.

JUDGE LEEN:
If I was an elementary school teacher instead of a judge I would require both counsel to write the following clearly established legal rules on a blackboard 500 times:
I will not make speaking, coaching, suggestive objections which violate Rule 30(c)(2). I am
an experienced lawyer and know that objections must be concise, non- argumentative and
non-suggestive. I understand that the purpose of a deposition is to find out what the witness
thinks, saw, heard or did. I know that lawyers are not supposed to coach or change the
witness’s own words to form a legally convenient record. I know I am prohibited from
frustrating or impeding the fair examination of a deponent during the deposition. I know
that constant objections and unnecessary remarks are unwarranted and frustrate opposing
counsel’s right to fair examination. I know that speaking objections such as “if you
remember,” “if you know,” “don’t guess,” “you’ve answered the question,” and “do you
understand the question” are designed to coach the witness and are improper. I also know
that counsel’s interjection that he or she does not understand the question is not a proper
objection, and that if a witness needs clarification of a question, the witness may ask for the clarification.

ME AGAIN: You go, Judge Leen! Just the right mix of sarcasm, ridicule and contempt. But tastefully done. She has the street cred to back it up, too, since she is the only female Nevada lawyer to be elected to the International Society of Barristers, the International Academy of Trial Lawyers, and the American College of Trial Lawyers (see page 9).

I will never be a federal judge. I lack judicial temperament. I would have wanted to do something more to these lawyers than reprimand them in an order. But I suspect they will not do this kind of thing again in federal court.