Updates: big words, Texan legal writing, conflicts of duties

In my post “Judge uses big word”, I commented on President Mason’s use of “tergiversation”. Now David Starkoff at Inchoate has noted another’s analysis of the odds of each of the High Court judges other than Justice Kirby being responsible for the appearance of “epexegetical” (which seems to mean “explanatory in a way supplementary to the principal or original explanation”) in a decision on migration. (10/1 odds: Justice Gummow.) Love how the judiciary tends to save up these little diamonds of language for those least likely to have the resources to look them up.

And, by way of update to my post “Finally, some scholarship on Australian lawyers’ conflict of duties”, here is a long article on conflicts of duties in America, “I’m All Verklempt!” by Kendall M. Gray et. al., including a long analysis of the Yanks’ position on Chinese walls. The relationship between establishing a conflict of duties and the entitlement to compensation of one of the people to whom the conflicting duties is owed is a bit complicated in Australia. It certainly does not follow that every breach of fiduciary duty gives rise to a right to money in the victim from the lawyer. But in Texas, there is a principle of fee forfeiture which applies in cases of clear and serious breaches of fiduciary duty, a remedy born in Burrow v. Arce 997 S.W.2d 229 (Tex. 1999). Where an attorney was found to have grossly overcharged, fee forfeiture was imposed so that the attorney lost all his fees rather than just those which exceeded a reasonable fee: In re Allied Physicians Group, P.A., No. 397-31267-BJH-11, Civ. A.3:04-CV-0765-G, 2004 WL 2965001, at *5 (N.D. Tex. Dec. 15, 2004) (unpublished), aff’d, 166 F. App’x 745 (5th Cir. 2006).

Mr Gray’s style cannot be described as stuffy, and exemplifies what is good about Texas, namely plain talking:

‘Rarely does one recognize a fork in the road where the devil sits on one shoulder and an angel on the other, while one is completely verklempt about whether to do the “right thing” or sell one’s soul.

For example, I daresay that not a single participant in any accounting scandal went to the 9:30 team meeting and suddenly suggested:

You know what, fellas? These reporting standards are really pretty restrictive and kinda vague. If we just blow through some stop signs and rubber stamp some deals, our consulting group can make a boat load of money. Are you with me?

Real life is not like that. What ends as a disaster seldom begins with warning bells. On
the contrary, it “feels right” and can easily be rationalized, often until close to the end. At that point, one watches the evening news and sees [onself portrayed as] the “Spawn of Satan.”’

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