There were just too many interesting things happening in the Second Circuit last week so here's a roundup of some of our favorites.
Recently in Ethics Category
Woody Allen is quoted as saying that “Eighty percent of success is showing up.” We’re not sure of the exact weight that the federal courts afford to actually appearing for proceedings, but — much like Allen — judges believe that showing up is critical.
So what happens when a lawyer doesn’t bother to show up? Typically, that results in attorney sanctions. In extreme cases, it could interfere with a plaintiff’s judgment. But the Second Circuit Court of Appeals ruled this week that penalizing a client should be a last resort.
Why should law firm ownership be restricted to lawyers?
Jacoby & Meyers, a multi-state law firm, says that New York's only-lawyers-can-own-law-firms rule infringes on fundamental rights like equal protection and due process. Maybe the firm has a point. Now, it's up to a federal district court to figure that out.
The Second Circuit Court of Appeals highlighted the occasional absurdity of the federal appellate process this week when it dismissed an administrative appeal because the appeal wasn't originally filed with the appellate court.
The short version of the ruling: If you get hit with Securities and Exchange Commission (SEC) debarment, appeal directly to a federal appellate court.
The long version, of course, is more interesting because it covers allegations of attorney misconduct.
Every spring, hundreds of teenage, aspiring-lawyer types flock to the National High School Mock Trial Competition. Typically coached by a licensed attorney, these kids learn how to apply the Federal Rules of Evidence to a fact pattern, and eventually try a case before panels of judges.
Most of them are pretty good. At the end of each round, the judges exclaim, “Outstanding! You were better than some of the real attorneys who appear in my courtroom! Follow your dream!”
Of course, when the scores are tabbed and the courthouse empties, these pretend-lawyers stop pretending. In contrast, the fake lawyer in today’s Second Circuit Court of Appeals case, on the other hand, didn’t know when to stop. Which brings us to today’s topic: ineffectiveness vs. per se ineffectiveness.
The 9/11 Truthers are back in the Second Circuit Court of Appeals.
This week, the Second Circuit imposed further attorney sanctions on one of the lawyers in the 9/11 Truther case, while relieving another attorney of sanctions after learning that he had served a "peripheral and subordinate role" in the frivolous appeal.
Ever wonder how much the Second Circuit Court of Appeals hates frivolous claims? In October, the court not only upheld dismissal in Gallop v. Cheney, (the 9/11 Truther Lawsuit), it sanctioned the attorneys behind the case for filing a frivolous appeal.
The lawsuit, filed on behalf of U.S. Army Specialist April Gallop, alleged that the Pentagon was not hit by American Airlines Flight 77 - or any plane, for that matter - but bombed by a coalition of the most senior U.S. military and civilian leaders in an attempt to implement radical changed in the government.
Class action lawsuits involve too much uncertainty to make the average, risk-adverse attorney comfortable. Discovery, alone, could continue for years, and the plaintiffs' attorney may never see a dime.
A far more profitable, albeit unethical, law firm model? Hang out a shingle as a plaintiff's attorney, and then work out a deal with the defendants your clients want to sue so that the defendants pay you to persuade the plaintiffs to drop the case.
Maybe we've been influenced by watching too many episodes of Damages, (which, if you haven't seen it, is completely amazing), but this seems like a good idea. Unless you get caught.
Attorneys are relieved when the court orders the losing party to pay their fees because it usually means that they will be paid. But what happens when the judgment awarding fees is vacated - not overturned - on appeal?
The Second Circuit Court of Appeals recently upheld an attorneys' fees award from judgment that was later vacated because the judgment "had brought a judicially-sanctioned, material alteration of the parties' legal relationship that had not been reversed on the merits." In case you don't have the time or energy to parse your way through that jargon, let's break this case down into English.