Sent to three licensing boards.
I am licensed in medicine by your board. I request advisory opinions on the following scenarios with patients. To make things easier for you, I request that you rate the conduct described as unprofessional (U) or acceptable legally and regulatorily (A). You should expect that any opinion you send will be shared with others.
1) A child patient has behaved well with parent earlier, and during an exam. Doctor gives him a lollipop, saying, “This is for your good behavior today.” The cost of the lollipop is 50 cents.
2) A state mental hospital doctor pays an eager mental patient $10 for washing his car, while the car is in the state hospital parking lot, during work hours. Both parties are satisfied by the result.
3) Patients in a program are raising money for an activity. They organize a bake sale or a car wash. A doctor who works there pays $100 for a cake with a $5 charge tag, or a car wash costing $10.
4) A doctor needs computer services. A current patient is unemployed, and desperate for any income. The doctor pays his full fee, for a contract worth $10,000, mutually benefitting both parties. There is no contract dispute, where abuse of private knowledge can be used.
5) Same as 4), but there is a private, not a public contract dispute. The doctor uses personal knowledge about the weak spots of the patient to bully a favorable settlement from the patient.
6) A doctor “friends” a patient on Facebook.
7) As a Facebook “friend,” he sees messages on the page of the patient that he has begun drinking alcohol again, and stopped his blood pressure medication. The patient does not reveal these changes, actually denies them, during a routine visit to the doctor. The doctor confronts and berates the patient (politely, yet firmly) about non-adherence to treatment. This is a reverse scenario as a violation of confidential health information. It uses public information in a private medical encounter.
8) As a Facebook friend, the doctor sees the patient plans to commit suicide or to kill his parents. The patient also says, he has collected a number of working guns. These intentions are denied in medical follow up sessions. Is there a duty to warn under the Tarasoff doctrine? Again this is the use of public information, superceding confidential denials during medical visits in the office.
9) The doctor and a patient fall in love. The doctor refers the patient to another doctor in the same specialty. They have sex, and eventually get divorced from their respective spouses and marry each other. (Please, review this question in light of two cases, Lawrence v Texas at the Supreme Court of the US, and Long v Ostroff decided at the Pennsylvania Superior Court).
Showing posts with label Professional Responsibility. Show all posts
Showing posts with label Professional Responsibility. Show all posts
Monday, October 10, 2011
Tuesday, September 20, 2011
Wrongfulness of Lawyer Licensing, Discipline, and Self-Regulation
The current arrangement of lawyer licensing and discipline violates the separation of powers, and is unconstitutional. It is not even rational, since no group of human beings has ever properly regulated itself in the history of mankind. The results are unfair self-dealt immunities, and countless virtual self-dealt immunities.
There are countless statutorily enumerated duties to the adverse third party in the Rules of Conduct, of Evidence, of Civil and of Criminal Procedure, not to mention case law over 1000 years. Yet, the lawyer is totally immune from liability for damage done to the adverse third party by misconduct. He is almost 99% immune from legal malpractice from his own client. The victim of malpractice must win a double verdict, that malpractice and damage took place, and second that he would have won the original case but for that lawyer malpractice. Next, he must prove that the original defendant was not judgment proof, and that he could have collected from the original defendant. Lastly, he must overcome the defense of the litigation privilege, where faulty judgment is privileged.
If liability is a substitute for violence, then violence against lawyers, and judges has full moral intellectual, and policy justification.
Next, there is no recourse for the public at the licensing level. Almost no civilian complaint is ever investigated properly nor taken seriously. Mostly complaints from judges are.
Writing the The Rules of Conduct is a legislative act. Yet it is done by the Supreme Court of a state. It often plagiarizes these rules from a professional society, the ABA, whose aim is to promote the interest of the lawyer, and not that of the public.
Next, a self-styled prosecutor investigates and prosecutes complaints against the lawyer. That is an executive function. Yet, the Disciplinary Counsel is an employee of the Supreme Court, and claims onto itself all discretions and immunities of a prosecutor, despite not being a real one.
Lastly, the Supreme Court of a state listens to the Disciplinary Counsel's case, the case of its own employee, and a person well know to the court. It then considers the arguments of an outside defense counsel. It is likely to favor which side, that of it s own employee, using all the buzz words provided by the court over time, or that of an argumentative stranger? So the procedural due process right to a fair hearing of the accused lawyer is brazenly violated.
There are countless statutorily enumerated duties to the adverse third party in the Rules of Conduct, of Evidence, of Civil and of Criminal Procedure, not to mention case law over 1000 years. Yet, the lawyer is totally immune from liability for damage done to the adverse third party by misconduct. He is almost 99% immune from legal malpractice from his own client. The victim of malpractice must win a double verdict, that malpractice and damage took place, and second that he would have won the original case but for that lawyer malpractice. Next, he must prove that the original defendant was not judgment proof, and that he could have collected from the original defendant. Lastly, he must overcome the defense of the litigation privilege, where faulty judgment is privileged.
If liability is a substitute for violence, then violence against lawyers, and judges has full moral intellectual, and policy justification.
Next, there is no recourse for the public at the licensing level. Almost no civilian complaint is ever investigated properly nor taken seriously. Mostly complaints from judges are.
Writing the The Rules of Conduct is a legislative act. Yet it is done by the Supreme Court of a state. It often plagiarizes these rules from a professional society, the ABA, whose aim is to promote the interest of the lawyer, and not that of the public.
Next, a self-styled prosecutor investigates and prosecutes complaints against the lawyer. That is an executive function. Yet, the Disciplinary Counsel is an employee of the Supreme Court, and claims onto itself all discretions and immunities of a prosecutor, despite not being a real one.
Lastly, the Supreme Court of a state listens to the Disciplinary Counsel's case, the case of its own employee, and a person well know to the court. It then considers the arguments of an outside defense counsel. It is likely to favor which side, that of it s own employee, using all the buzz words provided by the court over time, or that of an argumentative stranger? So the procedural due process right to a fair hearing of the accused lawyer is brazenly violated.
Friday, May 7, 2010
Lawyer Deceit Statutes
Recommended reading for all victims of lawyer deceit.
Attorney Deceit Statutes: Promoting Professionalism Through Criminal Prosecutions and Treble Damages
Alex B. Long
University of Tennessee College of Law
February 25, 2010
University of Tennessee Legal Studies Research Paper No. 103
UC Davis Law Review, Forthcoming
Abstract:
Unbeknownst to many lawyers, numerous jurisdictions - including New York and California - have statutes on the books that single out lawyers who engage in deceit or collusion. In nearly all of these jurisdictions, a lawyer found to have engaged in deceit or collusion faces criminal penalties and/or civil liability in the form of treble damages. Until recently, these attorney deceit statutes have languished in obscurity and, through a series of restrictive readings of the statutory language, have been rendered somewhat irrelevant. However, in 2009, the New York Court of Appeals breathed new life into New York’s attorney deceit statute through its decision in Amalfitano v. Rosenberg. This Article discusses the extent to which, in this age of widespread distrust of the legal profession, this type of external regulation of the legal profession is a desirable approach. The Article concludes that although the utility of existing attorney deceit statues is undermined by the broadness of the language, the symbolism of the statutes is important. By relying on the development of tort law to address the same subject matter, courts can achieve the same educational and symbolic goals while dealing with attorney deceit on a more practical basis.
Attorney Deceit Statutes: Promoting Professionalism Through Criminal Prosecutions and Treble Damages
Alex B. Long
University of Tennessee College of Law
February 25, 2010
University of Tennessee Legal Studies Research Paper No. 103
UC Davis Law Review, Forthcoming
Abstract:
Unbeknownst to many lawyers, numerous jurisdictions - including New York and California - have statutes on the books that single out lawyers who engage in deceit or collusion. In nearly all of these jurisdictions, a lawyer found to have engaged in deceit or collusion faces criminal penalties and/or civil liability in the form of treble damages. Until recently, these attorney deceit statutes have languished in obscurity and, through a series of restrictive readings of the statutory language, have been rendered somewhat irrelevant. However, in 2009, the New York Court of Appeals breathed new life into New York’s attorney deceit statute through its decision in Amalfitano v. Rosenberg. This Article discusses the extent to which, in this age of widespread distrust of the legal profession, this type of external regulation of the legal profession is a desirable approach. The Article concludes that although the utility of existing attorney deceit statues is undermined by the broadness of the language, the symbolism of the statutes is important. By relying on the development of tort law to address the same subject matter, courts can achieve the same educational and symbolic goals while dealing with attorney deceit on a more practical basis.
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