Monday, January 02, 2012

Charges against Gableman remain a stretch

Sunday's  article by Patrick Marley makes an effort to respond to the arguments that I and others have made that the relationship between Justice Michael Gableman and Michael Best was neither unethical nor unlawful. 

Let's review the bidding. It is pretty clear that the relationship between Justice Gableman and the law frim did not result in favorable treatment of Michael Best's clients. Gableman's votes in those cases did not differ materially from those of other members of the conservative majority.

But that doesn't close the issue with respect to either the state or judicial ethics code. My argument - and that of Gableman's lawyer (Viet Dinh who is a quite accomplished and nationally respected lawyer) - has been that the arrangement is supported by consideration and, in fact, bears significant resemblance to arrangements that lawyers and clients make every day. While Marley and those he quotes have chosen to focus on the contingency arrangements in personal injury cases, a better analogy is the agreement of lawyers in cases involving civil rights claims, class actions or other "fee shifting" statutes to limit themselves to whatever fees a court or other tribunal might award.

In such cases, a lawyer must prevail, persuade the court to award fees and then justify the amount of the fee request. A lawyer will often be compensated at a lower rate and for fewer hours than would be the case in a purely private arrangement. In such arrangements, there is not, as one of Marley's sources - a lawyer named Paul Gossens -  says of personal injury contingencies, a guarantee of "X number of dollars if you prevail...." Mr.  Gossens is wrong. The universe of contingency arrangements is larger than that.
So, in response, Marley's sources want to say that the probability of Michael Best obtaining a fee was "clearly" below some threshold below which such an arrangement must be a gift. In setting forth my argument, I anticipated that objection. Normally, we don't look behind the fact of consideration to ask whether it was "enough" or whether one side could have gotten a better deal.
Beyond determining that the potential for a fee award is real, I don't know that an extended analysis of the likelihood of recovery is warranted (or, as noted below, even possible). Lawyers often take cases in which the potential for actually recovering a fee is remote. Sometime they do it out of optimism. Often, they do it because they believe that the case presents issues that ought to be heard or interesting questions that the lawyer would like to work on.

Some (but not all) of the professors quoted in the article are apparently certain that they know that this was "too contingent" for any lawyer to take. I am not sure how they arrive at that certainty. I am unaware of any standard for them to apply other than personal judgment. Sometimes that's all we have, but we ought to be reluctant to brand others as unethical and criminal because their judgment differed from ours.
It seems to me, then, that critics of the arrangement have to argue that the possibility of fees was illusory - something that would never really happen. In my original post, I suggested that we wouldn't have much precedent with how the contingency models works in the world of judicial complaints because there are so few  complaints. Sure enough, the article reports that there have only been twenty four in forty years and only one in which the judge prevails and could have asked for fees.
The Journal Sentinel article makes much of this case - a 24 year old case in which a Racine County Circuit judge was only able to recover a portion of his fees. What would have happened in a far more prominent case involving a Supreme Court justice may have been quite different. Even were it necessary for the legislature to approve fees, it is not unusual for the legislature to approve claims against the state. The fact is that we have very little precedent from which to form a judgment.
While we can accept that it would have been tougher to get fees than in a traditional personal injury case, that doesn't mean that the possibility of recovering them was nonexistent or so insubstantial that it must be ignored for purposes of applying the state or judicial code. I assume that Professor Gillers, one of the law professors quoted in the article, must agree because he does not believe that the arrangement was improper.
My position is bolstered, I think, by the fact that we are not dealing with discounted car rental rates but the provision of legal counsel in a case of substantial public importance. This raises due process implications and I would suggest that we be reluctant to interpret general ethical standards in a way that makes it harder - perhaps even impossible - for people to get competent counsel. In fact, although  it is not necessary to resolve the case, I would want to think a lot more before I announced that a public official cannot be represented on a pro bono basis.

It is not clear to me that there was an alternative arrangement under which Justice Gableman could have obtained counsel. He did not have the money. Although both the Judicial Code and Chapter 19 make an exception for campaign contributions, contributions to defray the costs of a defense against  ethical charges are not that and would presumably themselves be indicted (with far more justification) as impermissible "gifts."
In any event, the standards for determining criminal or ethical violations ought to be clear. The gratuitous and subjective off the cuff judgments offered by Marley's sources - to the effect that, based on one case almost a quarter of a century ago, the prospect of fees are too remote - don't cut it.
Of course, an arrangement need not be unethical to warrant recusal. And, conversely, not all arrangements that might lead to some judges or lawyers to call for recusal are unethical. That's an issue I'll return to in my next post on the matter.




16 comments:

Anonymous said...

But -- assuming everything you say is accurate, which is a leap -- does it pass the smell test? The lawyer who argues the case before the Supreme Court today is the same lawyer who provided perhaps tens of thousands of dollars in legal services -- without charge -- to one of the Justices?

If you were the litigant on the other side and the "Get-out-of-jail- free" Justice was one of the "libs," can you say with a straight face that you wouldn't be screaming to high heaven?

Anonymous said...

Another angle: Dinh's argument is that there was "consideration," so the arrangement is Kosher.

What if Esenberg Cadillac sold an Escalade to the Justice for $10 a few months before Lawyer Esenberg argued a case before him?

Francisco Castelo Branco said...

www.olhardireito.blogspot.com - US ELECTIONS

Anonymous said...

"He did not have the money."

So he received a gift from Bopp also.

Anonymous said...

The 'smell test'?

Which statute does that fall within?

JB said...

Mr. Esenberg. An ethics charge is not a personal injury case. Defending against an ethics charge will not result in Justice (I hate to use that word for him) Gableman receiving damages. The only thing he could possibly receive is dismissal of the charge. In this case, those sitting in judgment of Gableman -- his peers in the Supreme Court -- were unable to convince themselves to dismiss the case against him. The case ended up in a 3-3 tie. (Please don't argue technicalities of what happened to the case in the Judicial Commission -- what matters is that there was no favorable decision here for Gableman.)

How can you possibly defend the receipt of free legal services by a sitting Supreme Court Justice? That is what happened here. The fee agreement was a sham, and you know it.

Moreover, your claim that Gableman's vote "did not differ materially" from that of the other conservative justices does not hold up. It is material that he sided with the law firm in MORE cases than any other justice, especially when the total number of cases involved is five where he voted on their side, and nine overall. To say that 20 percent of cases is "not a material difference" doesn't cut it. The cases where he voted against the Michael, Best attorneys were cases where liberal justices voted against them as well, meaning that MB&F attorneys represented the side with a lousy case. (Three cases were decided 7-0, one was decided 6-1).

The only "consideration" in this case is the notoriety gained by the Michael Best and Friedrich law firm, and by Michael McLeod in particular. Maybe that's enough for them. But is it truly legal "consideration" to be known (as if they weren't before) as the law firm fixer for Republican politicians?

Dad29 said...

The legislation governs, as Barrister Esenberg notes.

Too bad other lawyers don't seem to get that.

Having said that....

The facts and circumstances of the instant case produce a 3-3 tie, so to speak.

The MSM/Left would have us believe that Gableman is corrupt. But that cannot be said with certainty, unless a pattern of practice emerges.

It hasn't.

John Foust said...

Or they could just move him to another parish, right Dad29? You know, because his pattern of practice hasn't been established yet.

George mitchell said...

Rick's analyses (including an earlier post) provide helpful context and perspective. The journal sentinel is invested in a particular narrative. Its spin won't change. It at least owes it's readers the right to read Atty. Dinh's complaint re it's coverage.

Anonymous said...

George, you're invested in a particular narrative as well. Tell me that if the tables were turned and this was the Chief Justice or Walsh Bradley that you wouldn't be squealing like a stuck pig!

Tom said...

FWIW, although the paper MJS doesn't contain Dinh's letter, the online version does link to it.

Geo mitchell said...

Anon 8:44

You appear to agree that the paper has a slant in its coverage. That's the issue, rather than a hypothetical about how I or anyone else might react.

illusory tenant said...

I'm just a rudimentary reader of English, but it seems to me that the 'valuable' in 'valuable consideration' anticipates a consideration 'able to be valued.' Perhaps Prof. Rick can undertake to valuing Mike Gableman's peppercorn -- in U.S. dollars -- which was not only wholly speculative but was not even Gableman's wholly speculative peppercorn to give. Unless of course Prof. Rick is out of risible contortions with this latest Gableman apologetic. This case presents an unprecedented nexus of, inter alia, contract law, legal and judicial ethics, and, of all things, contingent fee arrangements more common to personal injury actions and which are based upon hard dollar figures, yet Prof. Rick treats it all as just another day at the office. Which I suppose it may be, if your office happens to be Prof. Rick's or Eric McLeod's.

Anonymous said...

Ricky needs to take an ethics class.

Anonymous said...

“State law permits the payment of fees to judges who prevail in ethics cases.”

Just because the law provides this opportunity, a judge is obligated to carefully weigh the inherent problems associated with making contingency fee arrangements with lawyers with whom they have close ties philosophically and politically. Yes, a judge certainly desires a law firm with a strong reputation to defend them on ethics charges, but that is why he/she, in their position, take extra precautions to prevent any hints of impropriety. Having another law firm--one that is not explicitly tied to the ongoing narrative--handle his business would have been done wonders.

John said...

I would like to know if there are any other cases where a judge had an ethics charge leveled against them where their lawyer set up a "contingency fee" based bill.