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Professor Bainbridge has produced a map of corporation laws in the United States showing which states have adopted the Model Business Corporation Act (MBCA). This is a nice resource for students to get their bearings reading cases in corporations or business associations. The cases themselves often don't mention whether their statute is based on the MBCA, but that information can be important to help students organize the cases in thinking about corporation laws. Of particular note for students, Delaware, California, Texas, and New York do not follow the MBCA, and they are some of the most significant states for incorporation. Kind of makes you wonder what the "majority rule" is, doesn't it?
Where do most companies incorporate? Like most things in law school, "that depends." For more information about where privately held companies tend to incorporate and where they tend to be physically located, see my analysis of private company incorporation decisions here. For similar data on publicly traded companies, see Bebchuk and Cohen's analysis of public company incorporation here.
Keith Bishop at the California Corporate & Securities Law blog has put together a post profiling recent scholarship on Nevada corporate law. The articles and essays linked there show a variety of opinions about Nevada's recent rise to more prominence in corporate law.
The rise has been dramatic, especially for SEC reporting companies. Several months ago I used computer analysis of the SEC's EDGAR database to document the recent meteoric increase in the number of Nevada reporting ompanies. The post showed that Nevada has greatly outstripped Delaware in new SEC reporting companies in the last five years.
The news from Nevada is actually somewhat unsettling when one digs deeper into the data, as the majority of these Nevada public companies have at least one investor red flag. It turns out that most of these companies are (at least) one of the following: shell companies, blank check companies, reverse merger companies, development stage companies, or penny stocks--not exactly traits that exude legitimacy.
Indeed, one might wonder whether Nevada is a sort of "attractive nuisance" for investors. Of course, there are legitimate public companies incorporated in Nevada, but the data on the these "sideshow" companies is compelling. Why are so many of these "unconventional" companies incorporating in Nevada?
Delaware dominates the corporate charter business. About 60% of Fortune 500 firms incorporate in Delaware as has been well documented. And Delaware’s dominance is not limited to large, blue-chip companies; most entrepreneurial ventures that secure professional outside financing are incorporated in Delaware as well. Over the years, Delaware’s incorporation monopoly has been challenged by several other states, but they have had only modest success.
The newest entrant in the “race” among the states is North Dakota, which enacted its Publicly Traded Corporations Act in 2007 in an attempt to offer a “shareholder-friendly” alternative to Delaware. The Act received a fair amount of attention from noted scholars and stimulated a flurry of shareholder proposals to reincorporate there in the 2009 proxy season. But as Stephen Bainbridge predicted and then reiterated, the initiative failed to attract a significant number of companies from Delaware. Even the shareholder proposals seem to have dried up, with no proposals in the 2011 proxy season.
Why did the North Dakota experiment fail? Bainbridge predicted companies would not reincorporate in North Dakota for three primary reasons (loosely paraphrased): (1) Delaware’s case law and courts allow “legal questions to be answered with confidence,” something that would take North Dakota years to achieve, (2) management has no reason to reincorporate there if the race is to the bottom, and (3) nobody has in incentive to reincorporate there if the race is to the top.
I agree with Bainbridge’s basic reasons for why North Dakota’s law failed but disagree about the inevitability of Delaware’s dominance. North Dakota failed because its approach failed to offer a Pareto superior alternative to the Delaware status quo. The problem with a state merely offering a “shareholder friendly” alternative is that shareholders do not have the power to initiate a reincorporation. This means, as Lucian Bebchuk has pointed out (p. 862), it is very difficult to change when managers favor the status quo—Delaware. If a state is to seriously challenge Delaware (absent federal intervention), it will need to offer an advantage that appeals to management as well as shareholders—in other words, a Pareto superior alternative to Delaware.
Do officers have the same fiduciary duties as directors? Gantler v. Stephens (2009).
Does the Delaware statute of frauds apply to LLC operating agreements? Olson v. Halvorsen (2009).
Can preferred stock be created with no right to receive dividends? Shintom v. Audiovox (2005).
What happens when a fiduciary fails to observe its duty of full disclosure? Berger v. Pubco (2009).
What is a promoter's liability in connection with a preincorporation agreement? Re: GS Petroleum, Inc. v. R and S Fuel (2009).
Are employment contracts containing restrictive covenants are assignable in a sale of the business? Great American Opportunities v. Cherrydale Fundraising (2010).
These are not obscure interstitial details or rapidly-evolving, cutting edge issues. These are basic questions in stable, even hoary areas of law that should have been resolved clearly and definitively decades ago. I do not mean to suggest that other states do a better job that Delaware at clarifying corporate law rules; they don’t. Other states have all of these types of enduring and perplexing uncertainties, and more. The point is that the law is unclear everywhere because of the maddeningly inefficient tradition of making corporate law decisions through judge-made law. But is that inevitable?
The answer is “no,” because there is an obvious alternative no state has tried. A state like North Dakota could provide more certainty than Delaware simply by taking the monopoly on answers away from the litigators and opening it up to planners. A rival state should create a system for providing reliable answers in advance of litigation—indeed, in advance of corporate action—by allowing its companies to simply ask for authoritative answers to basic questions such as whether preferred stock must pay dividends, by asking in advance of taking action, rather than by litigating after taking action. This is the type of guidance that is common in tax, bank regulation, securities regulation, and other areas that require advance planning, but is strangely absent in corporate law. Whether the ex ante guidance took the form of advisory opinions from a court or interpretive guidance from an administrative agency, the state that established such a mechanism to provide managers with authoritative answers ahead of time about uncertain questions of law would lure managers away from Delaware, shareholder friendly or not.
In this approach, a state would set up an authoritative body, which could consist of a business court or an administrative agency, that would receive and act upon confidential requests for interpretive guidance. Instead of paying Delaware counsel hundreds of thousands of dollars for uncertain predictions about the inclination of their friends on the Court of Chancery, a North Dakota agency could answer the question definitively, with certainty, and most importantly, before a decision had to be made. Other states would have to yield to North Dakota’s interpretation of its own corporate law under the Supreme Court’s interpretation of the internal affairs doctrine, which means that companies would be completely protected by such an interpretation. Thus, managers could proceed with routine transactions without the nagging uncertainty of litigation, and shareholders would be immunized from the destructive activity of nuisance plaintiffs.
Suppose a state implemented this suggestion and was successful in attracting companies away from Delaware. Why wouldn’t Delaware just adopt the innovation and outcompete the upstart state? That is the essence of Bainbridge’s final argument, “if investors valued the provisions of the North Dakota Act, Delaware would have gotten there first.” Yet Delaware could not follow where North Dakota could lead, and this is the key to the understanding why this proposal would work.
Delaware has no incentive to provide ex ante answers to legal problems, either as a first-mover or in response to another state. Why? Because Delaware’s advantage in the corporate charter business is also its vulnerability. The Delaware bar’s entrenched interest depends on the ex post revelation of corporate law answers through constant litigation and adjudication. The demand for members of the Delaware bar is driven by the uncertainty, ambiguity, and confusion created by the reliance on judge-made law. Only Delaware lawyers are able to provide companies the best advice based on off-the record conversations with their friends on the bench. Delaware’s wealth is in its human capital: its bench and its bar. But these informal networks of influence and social advantages are no longer valuable when authoritative answers can be had in advance from another state.
In future posts, I plan to build out this proposal for how a small state could make a big impact on corporate law in the United States. In the mean time, I'll wait for a call from North Dakota.
Are Nevada Public Companies for Real?
The last post showed that among public companies that seek external financing under Regulation D, Nevada appears to have overtaken Delaware as the top state of incorporation. This statistic is a little bit misleading, however, as we see in this post.
The definition of a "public" company for securities purposes is often tied to whether the company is required to file reports under Section 12 of the Securities Exchange Act of 1934. By this definiton, Nevada is clearly an important player in the incorporation market, with about the same share as Delaware in recent years. But many of the “public” corporations that one finds in Nevada are not what one might expect—companies with substantial assets and traded on a major exchange and therefore required to be report under Section 12. In fact, it appears that many of them in fact have no significant operations at all, and their primary purpose for existing is to file reports under Section 12.
To examine this seemingly odd claim, I collected data on whether companies in the data set fall into several categories that are subject to special treatment by the SEC. Specifically, I searched the 10-K (or 10-Q if no 10-K was filed) of each company for the following terms: (1) “reverse merger”, (2) “penny stock company”, (3) “shell company”, (4) “development-stage company”, and (5) “blank-check company.” Each of these terms is used by SEC regulations to denote a set of companies that are singled out for special scrutiny because of the potential for abuse. Note that none of these categories indicates that a company is violating the law, merely that the company has limited operations and assets and is susceptible to being a vehicle for securities fraud.
The Table below sets forth the percentages for various states of each category for Nevada and Delaware. More data is available in the paper that accompanies this analysis.
The table shows that Nevada has about twice as many companies in each of these categories, except “blank-check companies” where it is second to Delaware. Indeed, most of Nevada’s public reporting companies (64%) are penny stock companies, which generally refers to companies not traded on an exchange with a share price of less than $5. These statistics would not be encouraging for a substantial operating company considering reincorporating in Nevada.
Because many of the categories above are overlapping, perhaps more telling is the percentage of “normal” public companies in each state. By “normal” companies, I mean those that are not in any of the five categories above. Turning the analysis above areound, the next table gives the percentage of normal public companies together with the percentage of public companies in the top 10,000 public companies according to the SEC.
The information in the table is striking. Only about 14% of Nevada's public corporations are normal public corporations, where in Delaware the majority are. It is also clear that normal public companies are in the top 10,000, and being a non-normal companies are not in the top 10,000.
Why are these companies public reporting companies when they are so insignificant? In many cases the whole purpose of the companies is merely to be public so that they can serve as a "back door" IPO vehicle for another company. The real question is why has Nevada attracted so many companies in these categories? I will leave this to future posts and the comments.
An earlier post showed that Delaware is dominant state of incorporation for private companies that raise external financing. California was second with about 7% and Nevada was third with about 4%. A follow-up post showed that virtually all corporations incorporate in either their home state or Delaware. In fact, Delaware had about 91% of the corporations incorporated out of state. But Nevada had a respectable second place finish with about 5% of out-of-state incorporations. That is an especially impressive figure when one considers that the remaining 4% is spread among the other 48 states.
Overall, Delaware had about 62.5% of the private companies, as shown in the prior post "Where Do Privately Held Corporations Incorporate?" But how would Delaware fare among public companies reporting to the Securities and Exchange Commission? For many years, Delaware has been thought uniquely adapted to the needs of public companies, so we might expect it to have an even greater share there. We use the same data derived from Form D filings to find information on public companies. I determine whether a company is a reporting company by whether it has filed a 10-K or 10-Q on EDGAR.
Somewhat surprisingly the data show that among public companies filing reports with the Securities and Exchange Commission, Delaware actually has a substantially lower share than it had among private companies. Only 48% of the public reporting companies were incorporated in Delaware. Nevada was again second, but among the public companies its share was far higher, with about 27% (compared to 4% for private companies).
Indeed, not only does Nevada have a huge chunk of the reporting companies, it has had a rise in its share over the last several years. Among corporations incorporated prior to 2007, Nevada had a 20% share compared to Delaware’s 52%. Among those incorporated in 2007 or later, Nevada had a stunning 47% compared to Delaware’s 35%.
Is Delaware losing its grip on public companies to Nevada’s competition? The story is more complex, as we will see in the next post.

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A.C. No. 2756 June 5, 1986 - PRUDENTIAL BANK v. JOSE P. CASTRO, ET AL.
G.R. No. L-45319 June 6, 1986 - FIDELA Y. VARGAS v. RADM THOMAS J. KILCLINE, ET AL.
G.R. No. L-68575 June 6, 1986 - PEOPLE OF THE PHIL. v. BENITO GO BIO, JR.
G.R. No. L-64276 June 10, 1986 - CATHAY PACIFIC AIRWAYS, LTD. v. MANUEL V. ROMILLO, JR.
G.R. No. L-69494 June 10, 1986 - A.C. RANSOM LABOR UNION-CCLU v. NATIONAL LABOR RELATIONS COMMISSION, ET AL.
LEANDRO ALEJANDRO, ET AL. v. MINISTER OF JUSTICE, ET AL.
G.R. No. L-35592 June 11, 1986 - MEDARDO AG. CADIENTE v. LUIS T. SANTOS, ET AL.
G.R. No. L-65863 June 11, 1986 - ALFREDO L. HILADO v. VICENTE LEOGARDO, JR.
G.R. No. L-66653 June 19, 1986 - COMMISSIONER OF INTERNAL REVENUE v. BURROUGHS LIMITED, ET AL.
G.R. No. L-47985 June 20, 1986 - ALEJANDRO SANCHEZ v. WORKMEN’S COMPENSATION COMMISSION, ET AL.
G.R. No. L-69537 June 20, 1986 - TAHILRAM JASHANMAL BALANI v. INTERMEDIATE APPELLATE COURT, ET AL.
G.R. No. 73218 June 20, 1986 - IN RE: MARIANO LORENZO, ET AL. v. EUSTAQUIO MALLILLIN, ET AL.
G.R. No. L-46539 June 25, 1986 - METROPOLITAN BANK AND TRUST COMPANY v. TAN CHUAN LEONG, ET AL.
G.R. No. 70177 June 25, 1986 - SAN MIGUEL CORPORATION v. NATIONAL LABOR RELATIONS COMMISSION, ET AL.
G.R. No. 70262 June 25, 1986 - E & L MERCANTILE, INC., ET AL. v. INTERMEDIATE APPELLATE COURT, ET AL.

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In my negotiations with Col. Melnyk, Mr. Bandera and Mr. Dolenko I stated that I was giving them a completely free hand as far as the personal composition of the UNC Board was concerned because I believed that organizations should send delegates of their own choice. I made it a point, however, that Professor V. Kubiyovych would be my deputy. I thought that the Board of the Committee should consist of five members and a secretary: myself as chairman, Prof. Kubiyovych as deputy chairman, one member from among new emigres from eastern Ukraine, one representative of OUN(m) and one of OUN(b). Mr. V.A. Dolenko wanted either Prof. Dubrovsky or Prof. Vetukhiv to represent eastern Ukraine, but when both refused, he asked O.P. Semenenko, an attorney from Kharkiv who gave his consent.
Both fractions of OUN declared that Prof. Kubiyovych should be considered as representing western Ukraine, and that their organizations had no candidates for office in the UNC. Their attitude was quite understandable to me. The situation at the front was quite obvious by that time: why take a chance? Moreover, during my last meeting with Col. Melnyk in the presence of Mr. D. Andriyevsky and Mr. O. Boydunyk, the latter asked me: "General, what are you doing at Fehrhelliner Platz?" Obviously, I could just as well have asked him what he was doing there because if he had seen me there, he must have been there, too. That last talk was quite dramatic, all those present believing that there was no longer any sense in engaging in the activities of UNC: the reds were at the gates of Berlin, and the Allies had crossed the Rhine. The best way out for me would have been to take advantage of the chaos, go west and hide until the Allies came. There was a great "but" to all this, however. They forgot that I was a soldier with my honor and courage at stake, and that I would not flee or hide. They probably wanted to forget that they had taken part in entangling me in this situation, and that I could not very well, following all the prior talks and attempts, resign and tell Dr. Arlt that Col. Melnyk was withdrawing the mandate given me by the OUN. We could not cut off Dr. Arlt who had done so much for the cause of the UNC even if it were true that politics knows no sentiments ... I doubt whether these gentlemen gave serious thought to the fact that through its "Himmler's" Germany still had enough power to fight it out and finish all of us, even including Dr. Arlt and General Waechter. I thought it odd that such apparently serious people would lose sight of the fact that we were looked up to and counted on by our friends and allies: the Caucasians, Byelorussians, Cossacks, Turkestanians and others; I don't know how they could forget about the pressing need to save the soldiers of the "Halychyna" Division which was in a precarious position of being threatened with delivery to the Bolsheviks by a capitulating Germany. Our talk ended with Col. Melnyk reserving the right to recall his OUN from participating in the UNC.
A directly opposite stand was taken by S. Bandera of the other OUN group: "full support to the end, whatever it may be." The OUN(b) organization and its members were always full of good will and respect for the cause entrusted in my hands, and gave me their support as long as the UNC existed.
This made me change my plans as to the composition of the governing body of UNC. It would consist of territorial representatives of Ukraine with consideration for a so-called "emigre key," i.e. O. Semenenko would represent eastern Ukraine and new emigres, V. Kubiyovych western Ukraine and its emigres, and I the old emigres. This plan was readily approved by V.A. Dolenko and Prof. Kubiyovych who gave me all possible moral support in this difficult moment. V.A. Dolenko proposed Mr. P. Tereshchenko, an old emigre to be Secretary.
In spite of everything I felt very badly about being unable to get the advice of President Livytsky because I knew that he was the only person who could give me good advice and needed support. I decided to visit him at the first opportunity. The opportunity came on February 26. President Livytsky greeted me very warmly, heard my detailed report on the situation and finally told me that Mr. Boydunyk had already been to see him and asked that I should be made to change my mind about the UNC. Mr. Boydunyk's main argument was that this might expose Ukrainian political leaders to the danger of being charged with collaboration with the Germans. I replied that two months ago Mr. Boydunyk had not brought the argument of alleged collaboration, although the situation was then just as muddled as today. President Livytsky was in full agreement with me and said: "My soul is always with the soldiers, I also understand their logic and that is why I am now with you; continue doing what you believe to be necessary, but for the sake of tranquility find some way to cut yourself off from dependence on political organizations; I was always of the opinion that politicians should take their lessons in politics from soldiers, you probably remember what Clemenceau said, 'politics is too difficult to entrust it to generals,' but I think that it depends on the individual". I asked President Livytsky to let me take from his personnel General O. Vyshnivsky (the Commander of the 7th Blue Regiment of 1919 mentioned before) and Major Ya. Fartushny. The President consented and told me to ask them. I found them with ease because they lived in the same village; they consented and came to join me in Berlin soon thereafter.
It should be noted that neither I, nor the UNC had any funds for living expenses or for current disbursements. I had been quietly hoping that the leaders of our political organizations would take care of these matters, and I personally never considered making any requests. Professor Kubiyovych, however, gentlemen and realist, had not forgotten about financial matters: one day he came to me with his cashier, Mr. A. Mylanych, and handed me 5,000 German marks.
At that time many military men of various ranks began visiting me, and every one of them insisted on seeing me personally. Among them was General M. Omelanovych-Pavlenko, who came from Augsburg and offered his services. I was able to offer this deserving general the chairmanship of the UNC Military Advisory Board, a position that I created just for him, and the General accepted. The General, however, had no money for his fare back to Augsburg, and I had to borrow 500 marks for him from Lieut. Martyniuk.
Dr. Arlt, of course, remembered my financial needs, too, and offered me 20,000 marks through Prof. von Mende. I directed Lieut. Martyniuk to accept the money and to issue a receipt for the amount as a loan for UNC.
After my return from the visit to President Livytsky to Berlin, I talked about the UNC with Dr. Arlt from the angle of new difficulties on the part of Ukrainians, but instead of giving me a direct answer, he said that all formalities leading toward recognition of the UNC by the German Government had been completed, that all my demands had been met, and that a formal declaration of the act of recognition would take place in the Foreign Ministry according to my request, but it would take a few days to overcome technical difficulties. Dr. Arlt advised me not to wait for completion of formalities, but to finish my organizational work as soon as possible because the situation on the eastern front was perilous. I had an urge to tell Dr. Arlt "too late," but bit my lip in time because he was not responsible for the situation.
I asked Dr. Arlt to help me find Col. P. Samutyn whom I wanted to appoint as the Army Chief of Staff, but without success. In the meantime Col. A. Valiysky came to Berlin, and I gave the position to him. I appointed Major D. Bakun, an experienced officer, to be Chief of the Chancery and Inspection Department. I entrusted supplies to my brother, Col. O. Shandruk-Shandrushkevych, and at his request I made Lt. Martyniuk cashier and quartermaster. Capt. V. Serdyuk and Lt. Stryisky were my liaison officers, and when Major Ya. Fartushny arrived; I made him my personal aide. Gen. O. Vyshnivsky also arrived at that time, and took over military affairs in the UNC as my deputy. I requested Metropolitan Polikarp, then in Berlin, to appoint a military Bishop to the Ukrainian National Army, but since there was no bishop available, he appointed the Very Reverend Protoierey Biletsky as Army Protopresbyter. Attorney Colonel Ruzhytsky, mentioned earlier, became Attorney-General of the UNA.
Many of the officers who now reported to the Staff of our Army had been Ukrainian officers during the 1917-1920 period. Most were now in civilian clothes, but quite a few were in German uniforms and with reduced rank. They simply deserted from their German units feeling sure of protection of the UNC. Those whose rank had been reduced, e.g. former colonels now serving as majors, I ordered restored to their full rank and I had documents issued to them certifying that they were under the command of the UNC. I myself started to work immediately on establishing insignia for UNA soldiers, and I referred to my work on this subject on the Ukrainian Staff between 1928 and 1936. But here I was faced with insurmountable difficulties: It was impossible to get even our traditional stars, not to mention Ukrainian tridents and ribbons. In determining insignia for ranks I had to face reality: to put them on collars, sleeves, or shoulders. As the Soviet insignia were worn on collars and sleeves, I ordered ours to be worn on shoulders.
I had a lot of trouble in assembling a uniform for myself and finally I had to wear an overcoat of German design because there was no cloth or time to make a new one for me, or even to make all the necessary alterations to a German coat. On the left sleeve of my coat I had a trident made of yellow cloth. It was also impossible to buy or order a cap, so I wore a simple German military cap decorated with a trident badge which one of my soldiers gave me. Our uniforms, as can be seen from pictures, were traditional, and epaulettes were according to my design drawn when I was still on the Staff of the Ukrainian Ministry of Military Affairs. In addition, I also wore the S. Petlura Cross.
At that time a great number of officers began to report to our Staff, from generals on down; one of them, long retired and inactive, began to talk such nonsense about our attitude toward the Germans and about the need to establish two divisions immediately that I thought he was either a provocateur, or crazy. Delegations began arriving from military and labor camps requesting that camp inmates be drafted into the Army or transferred into purely Ukrainian camps because the Russians were furiously agitating that all should join the ranks of Gen. Vlassov's army, and on the other hand secret Communist agents were telling people not to join anyone because the Red Army would soon liberate them all. Ukrainians in the camps were in favor of pining the Ukrainian forces and this led to fights within camps and Ukrainians were not sure of their lives. I talked the matter over with Dr. Arlt, and within a few days a fine military camp in Nimek near Berlin was put at my disposal which could hold 3,000 men. There I immediately establish a collection point for the 2nd Ukrainian Division which was at first called the "Ukrainian Anti-Tank Brigade." My plans were to rename the "Halychyna" Division as the First Ukrainian Division when circumstances would permit. All who wished to join the Ukrainian National Army were directed to the Nimek camp, and we had 2,000 men assembled there shortly. Dr. Arlt helped us procure uniforms (unfortunately German), food and arms. I gave orders for Ukrainian national yellow-blue colors to be worn on caps and sleeves, but many soldiers were ready for this and put yellow tridents on a blue background on their sleeves. Colonel of the General Staff P. Dyachenko whom I had appointed commander of the Brigade ordered all soldiers to wear tridents and this was accomplished within a few days. Col. Dyachenko went to work with real vigor and in two weeks the Brigade became a real unit. When I inspected the Brigade I found the soldiers in fair physical condition in spite of their intensive training, and the percentage of sick men declined to an unbelievably low figure.
In a talk with Prof. Kubiyovych on March 8, we tried to find a way to legalize the UNC on the Ukrainian part on a wider basis. He proposed that the matter be discussed at a meeting of prominent Ukrainian representatives which he called to Weimar for March 12-14 for the purpose of determining aid to the Ukrainian civilian emigres by the Ukrainian Central Committee, and possible liquidation of the latter, since its functions were being taken over by the UNC. In addition to Dr. Kubiyovych, the following took part in the conference: his deputy in the UCC Dr. Kost Pankivsky, a well-known leader and attorney from Galicia, attorney V. Dolenko, Prof. V. Dubrovsky, Prof. M. Vetukhiv, Dr. M. Shlemkevych, Mr. A. Mylanych, Mr. A. Figol, Dr. Kotyk Stefanovych, Lt.-Col. Bisanz, and others whose names I did not, unfortunately, note. There was probably a total of 16 persons. The meeting first heard my full report on the military situation, and then on organizational matters of the UNC. I put particular emphasis on difficulties arising out of the new attitude of OUN(M), and pointed out that this attitude of the OUN was the result of their best intentions for the good of the Ukrainian cause. I ended my report with the question: "what are we to do?" I think that Dr. K. Pankivsky was the first to speak after me, and he was very emphatic in his demand that all Ukrainian emigres (in Germany and German-occupied areas) give their full report to the UNC. Mr. V. Dolenko, Dr. Shlemkevych and all others who spoke clearly demanded continuation of the work of the UNC, and Prof. Kubiyovych spoke of the need of the existence of the UNC to save our soldiers. There were no dissenting votes, or even doubts. The conference approved my candidacy as President of the UNC unanimously.
At that moment a new conception occurred to me: to eliminate the formal participation of our political parties in the UNC, and to establish the UNC on an anonymous factor, "the Ukrainian community." My new idea had the approval of the UNR government in the person of President A. Livytsky, and of the OUN(B) in the person of its leader Stepan Bandera.
"ORDER. To the Army and Navy of the Ukrainian National Republic. No. 8. March 15, 1945.
Re: General Staff: Lieutenant-General of (he General Staff Pavlo Shandruk is hereby appointed Commander of the Ukrainian National Army as of March 15, 1945.
(signed) A. Nosachenko, Lt.-Col. Seal."
After my return to Berlin Dr. Arlt informed me that on March 15, an official reception would be held in the Foreign Office and State Secretary G. Steengracht was to proclaim and deliver to me the Declaration of the German Government recognizing the UNC headed by me. I wanted Dr. Kubiyovych to be present at the ceremony, but he had not returned from Weimar.
"Reichsminister Alfred Rosenberg. Berlin, March 12, 1945.
To: General Pavlo Shandruk, Berlin-Charlottenburg.
(2) The Ukrainian National Committee has the right to represent the interests of the future Ukraine, and to manifest same in Declarations and Manifestoes. After final clarification of the matter of assembling those Ukrainians who are serving in the German Army, I shall make a demand that all Ukrainian units be joined together for the formation of a Ukrainian Liberation Army.
Minister Steengracht then added orally, since my demand had been oral, that the German Government consents to my taking immediate steps, with the aid of Dr. Arlt, toward withdrawing Ukrainian soldiers from units on the Western front. He noted with a smile that he was aware of the fact that although such an order had been already issued by the Wehrmacht Command, it was belated because the Ukrainians had already deserted from there.
Without my asking, Minister Steengracht explained that the Declaration of the German Government was signed by Minister Rosenberg because of the division of internal competences in the government.
Wine and canapés were served. I counted the number of people present and found a total of "thirteen," including myself. All offered me congratulations, and the Dr. Fischer mentioned before paid me the highest compliment when he said in Ukrainian: "You are one of the few who knew how to conquer the Germans without a fight, and your name is mentioned by all Germans." State Secretary D'Alken informed me that the German Radio had already broadcast the news about the UNC, and that questions were coming from all over: "who is General Shandruk?" Minister Steengracht talked with me for a few more minutes and did not hesitate to note that the Germans should rue the fact that they did not have the courage to perform this act in 1941. He did not mention any names, but I understood whom he meant.
After we left, Dr. Arlt said to me: "The Allies have conquered us, but you helped us conquer Hitler."
During the reading of the Declaration I thought again "too late." All the Germans present probably thought the same because now there was no power that could save them, certainly not the UNC, nor all the Committees put together. The only explanation is that Dr. Arlt and Gen. Waechter wanted to exonerate themselves and probably all Germans "before Ukrainian history," and most certainly wanted to save Ukrainian intellectuals, which is true when we consider the personal characteristics of the two men and their part in Ukrainian life. They could accomplish this only thanks to their power within the German nation and because under the existing circumstances there was no one to oppose them.
And so it happened. No one can imagine what went on inside me. I could only say one sentence to Dr. Arlt: "The Bolsheviks are near Kuestrin" – sixty kilometers east of Berlin. Nevertheless this was an event: right after I came to the Staff office I received numerous congratulations from friends and allies, Caucasians, Cossacks, Byelorussians, Turkestanians and others who had also formed their national committees.

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The Texas Supreme Court has been busy in 2016 issuing opinions on health care liability issues: analyzing the timing of service of expert reports, whether post-mortem claims are health care liability claims, whether a partnership can be liable for a physician’s acts, and the scope of and exceptions to the medical peer review committee privilege. The Fifth Circuit Court of Appeals also recently addressed the applicability of Chapter 74’s expert report statute in federal lawsuits. This article presents a summary of a few of these recent cases involving health care liability claims in Texas.
Texas Supreme Court Blesses Pre-suit Service of Chapter 74 Expert Reports: Hebner v. Reddy, No. 14-0593, ___ S.W.3d ___, 2016 WL 3172644 (Tex., May 27, 2016).
Section 74.351(a) of the Texas Civil Practice and Remedies Code requires health care liability claimants to timely serve an expert report in support of their claim on the “party” or the “party’s attorney.” Texas intermediate appellate courts considering the issue had uniformly held that pre-suit service of such an expert report did not comport with the statute. But on May 27, 2016 the Texas Supreme Court held otherwise in Hebner v. Reddy, No. 14-0593, 2016 WL 3172644 (Tex. May 27, 2016).
In Hebner, the parents of a child who died shortly after birth sent the delivering physician, Dr. Reddy, a pre-suit notice letter and the expert report and curriculum vitae of their expert. The parents later sued Dr. Reddy and her professional association, and served another report in an attempt to comply with section 74.351 but provided the wrong expert report, one prepared for another suit. After 120 days passed, Dr. Reddy filed a motion to dismiss Hebner's claims for failure to timely serve an expert report. The trial court denied the motion, but the court of appeals reversed, holding that pre-suit service of the first report did not “satisf[y] the relevant statutory requirements” and the second report, which did not implicate Dr. Reddy, did “not constitute [an] expert report[ ] as required” by the Act.
The supreme court reversed the court of appeals, holding that the statute does not forbid pre-suit service of an expert report. While the court acknowledged that that statute requires service on a “party” or “party’s attorney” and its prior holding in Zanchi v. Lane, 408 S.W.3d 373 (Tex. 2013) that “party” means one named in a lawsuit, the court rejected Dr. Reddy’s argument that she could not be served with an expert report because she was not yet a party to a suit when the parents first served it: “We did not mandate that physicians or health-care providers on the receiving end of a healthcare-liability claim must be a ‘party’ to a lawsuit before they could be properly served with an expert report.” The court stated that such an interpretation comported with the statute’s purpose in identifying and disposing of frivolous claims while preserving those of potential merit.
The court also held that the 21–day period for objecting to an expert report will not begin to run for a defendant upon whom an expert report was served before suit was filed until the defendant has actually been sued and served with process. By remaining silent until the 120–day deadline expired and then arguing that the parents had filed “no report,” Dr. Reddy waived any objection to the first report.
Fifth Circuit Holds that Chapter 74 Threshold Expert Report Requirement Does Not Apply in Federal Court: Passmore v. Baylor Health Care System, et al., No. 15-10358, ___ F.3d ___, 2016 WL 2956963 (5th Cir., May 19, 2016).
Section 74.351 of the Texas Civil Practice and Remedies Code requires plaintiffs in a health care liability claim to serve an expert report within 120 days after the filing of the defendant’s original answer, or face a mandatory sanction of dismissal with prejudice and defendant’s recovery of reasonable attorney’s fees and costs. When Passmore failed to serve an expert report in his health care liability claim filed in district court as related to a physician’s bankruptcy, the defendant health care providers filed motions to dismiss asking the district court to apply section 74.351 and to dismiss Passmore’s case with prejudice. Passmore argued that section 74.351 did not apply to his claim filed in federal court because the section is procedural and the Federal Rules of Civil Procedure 26 and 37 governed the requirements for expert reports and associated sanctions related to them. The district court applied section 74.351 as the substantive law of Texas and dismissed Passmore’s suit with prejudice. Passmore appealed.
The Fifth Circuit reversed the dismissal, holding that section 74.351 is a Texas procedural statute that directly collides with Federal Rules 26 and 37 and, therefore, does not apply in health care liability claims filed in federal court. The Court explained that Rule 26 governs pretrial disclosures, including the disclosure of expert reports, and does not require plaintiffs to serve reports within 120 days of the defendants’ answers, as does section 74.351(a). The Court also explained that Rule 37 provides the discretionary scheme of consequences of a party’s failure to comply with Rule 26, and includes dismissal of a non-complying party’s action. Because section 74.351(b) mandates dismissal for noncompliance, the Court held that section 74.351(b) conflicts with Rule 37.
The Fifth Circuit also rejected the argument that section 74.351 differs from Rules 26 and 37 in purpose and scope. While section 74.351’s purpose ensures that only meritorious lawsuits proceed, the Federal Rules serve to regulate discovery. The Court explained that despite this, the relevant rules need not be identical in purpose and scope—the inquiry is whether the scope of the Federal Rule is sufficiently broad to control the issue before the court. The Court concluded that section 74.351 could not be applied in federal court because it answers the same question as Rules 26 and 37: whether a plaintiff’s failure to serve an expert report within 120 days of the defendant’s answer mandates the dismissal of the action.
In reaching its holding, the Court examined various subsections of section 74.351, and recognized that: (1) section 74.351 regulates discovery because the report must inform the defendant of the specific conduct called into question—a similar function of Rule 26; (2) sections 74.351(s) and 74.351(u) provide for a mandatory stay on discovery until the plaintiff has served the requisite report, which unambiguously conflicts with the federal rules which tie the opening of discovery to the timing of the Rule 26(f) conference; and (3) section 74.351(t) allows the report to be used freely by the parties once the plaintiff elects to use the report in any substantive way. As a result, if applied in federal court, section 74.351 would significantly interfere with federal control of discovery, which is governed by the Federal Rules of Civil Procedure.
Finally, the Fifth Circuit dismissed other Circuits’ holdings that similar certificate of merit and affidavit of merit statutes were substantive law of the forum state that apply in federal court by distinguishing some of those opinions as involving pre-suit requirements for an expert opinion. It concluded the Federal Rules are constitutionally valid, and, because section 74.351 answers the same question as Rules 26 and 37, a federal court entertaining Texas state law health care liability claims may not apply section 74.351.
Post-Mortem Claim Related to Hospital’s Autopsy Services is a Health Care Liability Claim: Christus Health Gulf Coast d/b/a Christus St. Catherine Hospital v. Carswell, No. 14-0362, ___ S.W.3d ___, 2016 WL 2979718 (Tex., May 20, 2016).
Carswell died at the hospital after being found unresponsive in his bed. Given the circumstances of his death, the attending physician ordered an autopsy. Various conversations occurred between the family and hospital staff regarding whether the autopsy would be performed by the county medical examiner’s office or whether it would be a private autopsy. Ultimately, Carswell’s wife signed a consent form for a private autopsy, which was performed at another Christus hospital (St. Joseph).
Carswell’s family later sued the hospital and physicians for medical malpractice that caused Carswell’s death. Roughly three years later, the family amended its petition and asserted, for the first time, claims related to post-mortem conduct—namely, that the hospital fraudulently obtained the wife’s consent for a private autopsy and violated various criminal statutes relating to giving notice of the death to the county medical examiner. The hospital moved to dismiss these new claims as improperly recast health care liability claims or, alternatively, as barred by limitations. The trial court denied the motion.
The case proceeded to trial. The jury found the hospital did not cause Carswell’s death, but it found against the hospital on the post-mortem claims and awarded actual damages and punitive damages. The hospital re-urged the Chapter 74 and limitations arguments, which the trial court again denied.
On review, the Texas Supreme Court held that the post-mortem claims alleged departures from accepted standards of “professional or administrative services” with which the hospital had the duty to comply or provide to maintain its license. These included notifying the medical examiner of the death, not moving the body without the medical examiner’s permission, and fraudulently obtaining the consent to the private autopsy.
The court next held that the post-mortem claims were “directly related to health care.” The statute did not require the person to be a patient during the relevant time period (or even to be alive, an issue the court declined to address). Further, the common meaning of the phrase “directly related to” was “an uninterrupted, close relationship or link between the things being considered.” The family’s claim was that, immediately following the death, the hospital took actions to cover up the deficient health care provided to Carswell. Given these circumstances, the family’s claim was directly related to acts or treatments they alleged were improperly performed or furnished, or that should have been performed or furnished, to Carswell during his treatment and confinement. Therefore, the fraud claim was a health care liability claim.
The court next addressed whether the post-mortem claim was barred by the Chapter 74 statute of limitations. The court rejected the family’s argument that, if the post-mortem claim was a health care liability claim, it related back to the original filing and was not barred by limitations. The court held that the post-mortem claim was based on separate and distinct transactions or occurrences from the pre-mortem medical malpractice claim and, thus, the post-mortem claim did not relate back. Thus, because it was filed more than two years and 75 days after it accrued, it was barred by limitations.
Partnership in Business of Operating Hospitals Cannot be Vicariously Liable for Physician Partner’s Medical Malpractice: Doctors Hosp. v. Andrade, No. 15-0563, ___ S.W.3d ___, 2016 WL 3157535 (Tex., May 27, 2016).
Under Texas partnership law, a partnership can be held liable for injury caused by a partner if the partner was acting in the ordinary course of the partnership’s business or with the partnership’s authority. The issues in this case are: (a) whether a limited partnership that owns a hospital may be vicariously liable for the alleged professional negligence of a doctor who is a limited partner in the partnership; and (b) if so, whether the general partner of that limited partnership may be liable as well.
The plaintiffs brought a health care liability claim against Dr. Lozano based on alleged negligence during labor and delivery. They also sued Doctors Hospital at Renaissance, a limited partnership that owned and operated the Hospital, and RGV Med, LLC, which was Renaissance’s general partner. Dr. Lozano was an independent contractor with admitting privileges at the Hospital, and he also was a limited partner in Renaissance.
The Texas Supreme Court applied the general partnership and limited partnership statutes to the summary judgment evidence, including the partnership agreement. It concluded that the record conclusively established that the ordinary course of Renaissance’s business did not include the provision of medical care but, rather, was to provide and operate medical facilities. The court also recognized that the partnership agreement expressly provided that the limited partners could not act with the authority of the partnership unless specifically authorized. The evidence showed that, when the doctors practiced medicine at the Hospital, they were acting under their admitting privileges, not with the authority of the partnership.
Therefore, the court held, the ordinary course of the partnership’s business did not include a doctor’s medical treatment of a patient, and the doctor was not acting with the authority of the partnership in treating the patient. Neither the partnership nor its general partner can be liable for the doctor’s medical negligence. The court reversed the summary judgment and rendered judgment for Renaissance and RGV.
Statutory Exception to Peer Review Privilege Requires In Camera Inspection: In re Christus Santa Rosa Health Sys., No. 14-1077, ___ S.W.3d ___, 2016 WL 3157558 (Tex. May 27, 2016).
Christus Santa Rosa Health System brought this original proceeding challenging the trial court’s order compelling production of its medical peer review committee’s records pertaining to a surgery performed by Dr. Gerald Marcus Franklin. Christus contended that the documents were protected from production by the medical peer review committee privilege, provided in section 160.007(a) of the Texas Occupations Code, and that the trial court abused its discretion in ordering Christus to produce the documents to Dr. Franklin. Dr. Franklin contended that the documents were subject to disclosure under the exception to the medical peer review committee privilege provided in section 160.007(d). The Texas Supreme Court recognized the section 160.007(d) statutory exception to the medical peer review privilege, but held that the trial court abused its discretion in ordering the documents produced without a proper in camera inspection to determine whether the statutory exception applied.
The lawsuit arises from a March 2012 surgery performed by Dr. Franklin. Baird had undergone a previous surgery by Dr. Franklin wherein the right lobe of her thyroid was removed and found to be cancerous. Baird alleged Dr. Franklin was negligent in the March 2012 surgery because he removed thymus gland tissue instead of Plaintiff’s remaining left lobe of her thyroid gland. Baird contended that, during the March 2012 surgery, Dr. Franklin encountered significant inflammation and fibrosis making dissection of her remaining left lobe extremely difficult and tissue planes difficult to define. Dr. Franklin dissected out what appeared to be a small and scarred left lobe thyroid gland, and as was customary, he sought to get a definitive diagnosis of the tissue by sending it to the pathology department for cryostat diagnosis. Dr. Baird intended that once diagnosed, he would remove the rest of the lobe if necessary. However, the cryostat machine was unavailable, so Dr. Franklin could not complete the procedure. After the March 2012 surgery, Christus convened a medical peer review committee to review Dr. Franklin’s performance in the surgery, and ultimately did not recommend discipline or take any other action.
After Baird sued Dr. Franklin, he filed a motion to designate Christus as a responsible third party, contending that the hospital was responsible for the surgery’s failure because it failed to inform him the cryostat machine was unavailable prior to Baird’s surgery. He contended that because the cryostat was unavailable, he could not complete the surgery and had to end the procedure without removing the left lobe. Baird then named Christus as a defendant.
Dr. Franklin served requests for production on Christus, seeking documents from Christus’ medical peer review file. Christus objected, filed a motion for protective order and privilege log listing the documents being withheld based on the medical peer review privilege found in section 160.007(a). Dr. Franklin sought to compel production, contending a statutory exception to the privilege—found at section 160.007(d)—applied.
If a medical peer review committee takes action that could result in censure, suspension, restriction, limitation, revocation, or denial of membership or privileges in a health care entity, the affected physician shall be provided a written copy of the recommendation of the medical peer review committee and a copy of the final decision, including a statement of the basis for the decision.
Dr. Franklin argued that the committee did take action in convening and reviewing the surgery, despite that it recommended no discipline or took no other action. Christus tendered the documents to the trial court for in camera inspection. The trial court conducted a hearing and ordered the documents produced. Christus sought, but was denied, relief in the court of appeals and filed its petition for mandamus in the Texas Supreme Court.
The supreme court concluded that, because Christus presented a prima facie case for application of the privilege (through affidavit of its director of quality and patient safety, the Medical Staff Bylaws, and a privilege log) and tendered the allegedly privileged documents for an in camera inspection, the trial court was obligated to review them to determine whether they fell within the exception to the privilege. The Court concluded that an in camera inspection was important because of the meaning of section 160.007(d). The Court examined the provision, emphasizing that it provides for disclosure only of the “recommendation” and “final decision” of the medical peer review committee, and this connotes a completion of medical peer review and more than simply convening a meeting. The Court concluded the provision applies where “some consequence—the disciplinary measures listed in the statute—must be possible from the medical peer review committee’s voluntary act of will.” The Court explained that disclosure of the recommendation and decision to the affected physician under the exception does not constitute a waiver of the confidentiality requirements established under the statute.
The supreme court held that, on the mandamus record before it, it could not determine whether the medical peer review committee took any action that could have resulted in discipline, which would authorize disclosure of the final medical peer review report and recommendation to Dr. Franklin under section 160.007(d). Because the record showed the trial court did not examine the documents to determine whether the Committee took action as required under the statute, the Court conditionally granted the mandamus, vacated the order compelling production of the committee documents, and ordered the trial court to conduct a further examination of the documents and determine whether the exception to the privilege applies in this case.


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Chair: Governor's Tax Reform Task Force, 1987-1988; Federal Multi-State Tax Commission, 1990-1992. Executive Committee, Federation Tax Administrators, 1987-1992. President, Southeastern Association Tax Administrators, 1990. Governor's Tax Reform Commission, 1992-1993.
Montgomery County and American (Vice-Chairman, Automobile Law Committee, 1982) Bar Associations; Virginia State Bar; Alabama State Bar (Member, State Legislation Review Committee, 1993-1995; Lawyers Helping Lawyers Committee, 1996-1998; Chair, Administrative Law Section, 1994-1996).
Ex Parte Conference America, Inc., 713 So.2d 953 (Ala. 1998); City of Montgomery v. Glenn, 749 So.2d 478 (Ala. Clv. App. 1999); Ex pate Kelley, 766 So.2d 837 (Ala. 1999); Reese v. Harris, 772 So.2d 1193 (Ala. Clv. App. 2000); Brown v. Board of Educ., 863 So.2d 73 (Ala. 2003); Lemons v. State of Department of Finance, 856 So.2d 847 (Ala. Clv. App. 2003); Ex parte K.L.P., 868 So.2d 454 (Ala. Clv. App. 2003); Ex parte State Department of Revenue, 886 So.2d 817 (Ala. Clv. App. 2003); Culverhouse, Inc. v. Alabama Department of Revenue, 358 B.R. 806 (M.D. Ala., 2006) (aff'd 214 Fed. Appx. 921)(11th Cir, Ala., 2007); Boyd Bros. Transp., Inc. v. State Department of Revenue, slip op. No. 2050675, 2007 WL 1793027 (Ala. Clv. App. June 22, 2007); Wehle v. Bradley, --- So.3d ---, 2010 WL 1525127 (Ala. Apr. 16, 2010).

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Issue: What was the appropriate sanction for an attorney who failed to respond to Bar Counsel's repeated requests for information?
Holding: Only a public reprimand is needed in light of such mitigating factors as (1) no misappropriation; (2) no intention to continue practicing law; (3) full cooperation with Bar Counsel when the issue was raised; (4) no selfish or dishonest motive; (5) no prior disciplinary record; and (6) no harm to clients.
PANEL: BELL, C.J. HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS and BARBERA, JJ.
Thomas Howard Queen, Respondent, was admitted to the District of Columbia Bar in January of 1968, and to the Maryland Bar on June 6, 1984. On December 11, 2007, the Attorney Grievance Commission of Maryland filed a Petition for Disciplinary or Remedial Action in which it asserted that Respondent violated several Maryland Rules of Professional Conduct. On December 14, 2007, this Court ordered that the charges contained in the petition "be heard and determined by Judge Cathy Hollenberg Serrette, of the Seventh Judicial Circuit[.]"
The facts underlying the alleged violations are, for the most part, undisputed. The complainant, Maria Abarza, was injured when she tripped on an uneven concrete slab on the grounds of the Prince George's County Justice Center complex in Hyattsville, Maryland, on February 19, 2002. She incurred medical expenses of approximately $5,693.99 as a result of the accident. Ms. Abarza retained Respondent Page 560 to file a claim. She had been referred by a family member, Linda Williams, Respondent's legal secretary.
Soon after the initial meeting with Ms. Abarza, Respondent visited the scene of the accident, met with Ms. Abarza's daughter, Judge Caldwell, and contacted an expert to evaluate the scene of the accident. On August 8, 2002, Respondent timely placed Prince George's County on notice of the pending claim. In September of 2002, Prince George's County denied liability claiming that the property where Ms. Abarza had fallen belonged to the City of Hyattsville. In October of 2003, Respondent contacted the City of Hyattsville, which in November, 2003, asserted that the property belonged to Prince George's County.
On February 22, 2005, Respondent filed suit against the City of Hyattsville, the Mayor of the City of Hyattsville, the City Council of the City of Hyattsville, the Hyattsville City Police Department and the Prince George's County Government seeking damages of $40,000.00.
On March 31, 2005, Prince George's County filed a Motion to Dismiss asserting that Respondent had identified said Defendant as "Prince George's County Government," (as it had been identified by the County's insurance carrier), rather than "Prince George's County, Maryland," the proper appellation. Respondent failed to correct the misnomer or file an opposition, and on June 22, 2005, the action against Prince George's County was dismissed. The City of Hyattsville filed a preliminary motion denying ownership of the property in dispute. It too was dismissed on June 22, 2005.
Respondent neglected to inform Ms. Abarza about the trial court's dismissal of the case in June of 2005. In June of 2006, Respondent met with his client and her family and advised them about the status of the case. At that time, Respondent recommended that Ms. Abarza seek independent counsel to pursue a claim against Respondent. Ms. Abarza was provided a packet of the materials from her case to enable independent counsel to assess damages and evaluate the claim against Respondent. Ms. Abarza thereafter hired Attorney Jeffrey Ashin, and on September 27, 2007, Respondent and Ms. Abarza reached a settlement in the amount of $30,000.00. Respondent paid Ms. [Abarza] from his personal assets and did not submit the claim to his malpractice carrier.
Respondent was negligent in failing to oppose the County's Motion to Dismiss, but appropriately filed a timely request for reconsideration seeking to correctly identify Defendant "Prince George's County, Maryland". When the trial court refused to reconsider, Respondent timely noted an appeal. His inexplicable failure to file an appellate brief after his misstep below was apparently an uncharacteristic oversight endemic to his handling of Ms. Abarza's case.
. . . For the same reasons Respondent is deemed to have violated MRPC 1.1, Respondent is deemed to have failed to act with reasonable diligence and promptness in violation of MRPC 1.3.
Respondent denied that he had failed to maintain appropriate communication with Ms. Abarza. He relied, however, in large part, on his paralegal and legal secretary to maintain contact.
Petitioner failed to establish by clear and convincing evidence that Respondent violated MRPC 1.4.
It was not shown by clear and convincing evidence that Respondent knowingly failed to respond to Bar Counsel, and accordingly, a violation of MRPC 8.1(b) was not established.
(d) engage in conduct that is prejudicial to the administration of justice.
Respondent's conduct in the Abarza case appeared to have been an aberration. There was no offense involving moral turpitude, no indication of indifference to legal obligations, no serious interference with the administration of justice, or conduct that would seriously impair public confidence in the profession. In short, Respondent was negligent in his handling of Ms. Abarza's case. He was honest with his client about his mistakes and urged her to hire independent counsel to pursue a malpractice claim [against him]. Upon reaching a settlement, [Respondent] compensated Ms. Abarza from his personal resources without resort to his malpractice carrier.
This Court does not find that respondent violated MRPC 8.4(d).
Respondent was clearly remorseful. His recommendation to Ms. Abarza that she hire counsel to assert a claim against him while there was a remote possibility that her action against Prince George's County could be revived coupled with his payment to Ms. Abarza without resort to his malpractice carrier evidenced an understanding of his mistakes and a principled effort to ensure that Ms. Abarza was fairly and fully compensated. No selfish motive was shown.
There is no reason to believe that the misconduct will be repeated. Even Petitioner's witness, Linda Williams, testified that Respondent was a workaholic and that his mishandling of Ms. Abarza's case was out of character.
Respondent has historically responded appropriately to inquiries by the Attorney Grievance Commission. After almost forty years of practice, this is the first time that Respondent will be subjected to discipline.
(Emphasis in original; footnotes omitted).
The Commission has (1) taken "exception to the [hearing judge's] failure to find that Respondent violated Maryland Lawyers' Rule of Professional Conduct 1.4, 8.1(b) and 8.4(d)," and (2) recommended that this Court impose "an indefinite suspension with the right to apply for reinstatement no sooner than ninety (90) days from the date of the suspension." Respondent argues that, "under the circumstances of this case, and in light of the strong mitigating circumstances found by the trial Court, and [Respondent's] long unblemished record, . . . a public reprimand would be an appropriate sanction in this matter." For the reasons that follow, we shall sustain the Commission's exception as to the 8.1(b) violation, and issue a public reprimand.
"This Court has original and complete jurisdiction over attorney discipline proceedings" in Maryland. Attorney Grievance Comm'n v. Adams, 349 Md. 86, 93, Page 565 706 A.2d 1080, 1083 (1998). Even though conducting an independent review of the record, we accept the hearing judge's findings of fact unless they are found to be clearly erroneous. Attorney Grievance Comm'n v. Zdravkovich, 375 Md. 110, 126, 825 A.2d 418, 427, (2003). This Court gives deference to the hearing judge's assessment of the credibility of witnesses. Id. Factual findings by the hearing judge [that the Commission has satisfied its burden of persuasion] will not be interfered with if they are founded on clear and convincing evidence. Attorney Grievance Comm'n v. Mon-fried, 368 Md. 373, 388, 794 A.2d 92, 100 (2002). All proposed conclusions of law made by the hearing judge, however, are subject to de novo review by this Court. Attorney Grievance Comm'n v. O'Toole, 379 Md. 595, 604, 843 A.2d 50, 55 (2004).
Because it would be unfair to require that a busy lawyer who is "up to the elbows" in a trial or in a transaction must "drop everything" and work on nothing else until completing his or her response to Bar Counsel's request for information, the lawyer who receives such a request can comply with the requirements of Rule 8.1(b) by (1) acknowledging receipt of Bar Counsel's request, (2) explaining why he or she needs an extension of time to file a response, and (3) requesting that Bar Counsel consent to an extension for a reasonable period of time. The case at bar, however, involves a December, 2006 request for information that was not acknowledged until April of 2007.
The record includes a stipulation that Respondent did not obtain counsel until March of 2007. During Respondent's cross-examination, he conceded that he received the Commission's first request for information, which was made in a letter dated December 11, 2006, and that he received three more written requests-in letters dated January 31, 2007, February 28, 2007, and March 16, 2007-before his counsel responded on his behalf in a letter dated April 5, 2007. In Attorney Page 566 Grievance Comm'n v. Tolar, 357 Md. 569, 745 A.2d 1045 (2000), this Court agreed with the hearing court's conclusion that the "[r]espondent violated Rule 8.1(b) by knowingly failing to respond to Bar Counsel's requests in this matter from approximately November 20, 1997, until February 12, 1998." Id. at 582, 745 A.2d at 1052. We therefore agree with the Commission that an April 5, 2007 acknowledgment of a December 6, 2006 request for information constitutes a violation of Rule 8.1(b).
We have made clear so many times as not to require citation to authority that the purpose of attorney disciplinary proceedings is not to punish the erring attorney, only to protect the clients whom attorneys serve.
Id. at 363, 946 A.2d at 548.
We are mindful that our aim is to protect the public and the public's confidence in the legal profession rather than to punish the attorney. [Attorney Grievance Comm'n v. Kreamer], 404 Md. [282,] 348, 946 A.2d  at 539 [(2008)]. We aim also to deter other lawyers from violating the Rules of Professional Conduct. Id. The public is best protected when sanctions are imposed commensurate with the nature and the gravity of the misconduct and the intent with which it was committed. Attorney Grievance Comm'n v. Reinhardt, 391 Md. 209, 223, 892 A.2d 533, 541 (2006).
"Absence of a prior disciplinary record; absence of a dishonest or selfish motive; personal or emotional problems; timely good faith efforts to make restitution or to rectify consequences of misconduct; full and free disclosure to disciplinary board or cooperative attitude toward proceedings; inexperience in the practice of law; character or reputation; physical or mental disability or impairment; delay in disciplinary proceedings; interim rehabilitation; imposition of other penalties or sanctions; remorse; and finally, remoteness of prior offenses."
Id. at 488-89, 671 A.2d at 483 (quoting ABA Standards, Standard 9.32, at 41-42).
Id. at 720-21, 955 A.2d at 768-69.
The Commission argues that the following cases support its recommendation that Respondent be suspended indefinitely with the right to apply for reinstatement no sooner than ninety days: Ugwuonye, supra; Attorney Grievance Comm'n v. David, 331 Md. 317, 628 A.2d 178 (1993); Attorney Grievance Comm'n v. Harris, 366 Md. 376, 784 A.2d 516 (2001); Attorney Grievance Comm'n v. Reinhardt, 391 Md. 209, 892 A.2d 533 (2006); and Attorney Grievance Comm'n v. Fezell, 361 Md. 234, 760 A.2d 1108 (2000). We are persuaded, however, that the issuance of a reprimand in the case at bar would not be inconsistent with any of these cases.
In Ugwuonye, this Court imposed a ninety day suspension on an attorney who was found to have violated several Rules of Professional Conduct, including the failure to return the Page 569 unearned portion of a retainer fee upon termination of representation, and the failure "to deposit [a $3,500] retainer into a client trust or escrow account when the fee was unearned at the time it was received[.]" 405 Md. at 371, 952 A.2d at 238. No such violations occurred in the case at bar.
In David, this Court imposed an indefinite suspension, with the right to apply for reinstatement no sooner than six months, on an attorney who had failed to (1) return an unearned fee for a period of nine months, (2) timely remit funds received on behalf of a client, (3) communicate with his clients, and (4) failed to answer Bar Counsel's requests for information about three of four clients whose representation by the attorney had been "marked by serious neglect and inattention." 331 Md. at 323, 628 A.2d at 181. In Harris, this Court imposed a six month suspension on an attorney who had three prior sanctions and whose "violations show[ed] a recurring pattern of behavior that [was] serious enough to warrant suspension for [that] this length of time." 366 Md. at 406, 784 A.2d at 533. In the case at bar, which involves the negligent handling of a single case, we agree with the hearing judge's finding that "[t]here is no reason to believe that the misconduct will be repeated."
In Reinhardt, this Court imposed an indefinite suspension on an attorney who, after ignoring his client's repeated requests for information about the status of her case, "misrepresented the truth when he [eventually] told his client that he was working on the case when, in fact, he had lost the file and was not working on the case at all." 391 Md. at 222, 892 A.2d at 540. In the case at bar, Respondent (in the words of the hearing judge) "was honest with his client about his mistakes[,] urged her to hire independent counsel to pursue a malpractice claim[, and] [u]pon reaching a settlement, . . . compensated Ms. Abarza from his personal resources without resort to his malpractice carrier."
In Fezell, this Court imposed a sixty day suspension on an attorney who (1) failed to keep a domestic relations client informed of the status of her case, (2) failed to obtain an Page 570 uncontested divorce for the client within a period of four years, and (3) "resisted the efforts of the Commission to investigate the complaints and then attempted to justify his recalcitrance by a formalistic interpretation of procedural rules." 361 Md. at 255, 760 A.2d at 1119. Although we have found that Respondent's tardy response to Bar Counsel's requests did constitute an 8.1(b) violation, the case at bar does not involve either an obstinate refusal to cooperate or a denial of access to relevant documents. In fact, Respondent's 8.1(b) violation is much less egregious than the violation found in Attorney Grievance Comm'n v. Bridges, 360 Md. 489, 759 A.2d 233 (2000), in which this Court issued a reprimand to a respondent found to have "refused to provide [Bar Counsel with] requested information, failed to cooperate with the Inquiry Panel, and destroyed relevant documents." Id. at 512, 759 A.2d at 245.
We can send that message, in the present case, without disrupting Respondent's practice of law. See Attorney Grievance Comm'n v. O'Neill, 285 Md. 52, 57, 400 A.2d 415, 418 (1979) (stating, under the circumstances of that case, that imposing a reprimand means it will forever appear in a reported Maryland case that the attorney sanctioned has been found to be a liar); Attorney Grievance Comm'n v. Tolar, 357 Md. 569, 585, 745 A.2d 1045, 1054 (2000) (holding that a public reprimand would "serve the purpose of protecting the public just as well as a short suspension"); Attorney Grievance Comm'n v. Jaseb, 364 Md. 464, 475, 773 A.2d 516, 522 (2001) (concluding that a reprimand was an Page 571 appropriate sanction considering, among other factors, the attorney's lack of prior misconduct and the lack of prejudice to the client); Attorney Grievance Comm'n v. Lee, 390 Md. 517, 527, 890 A.2d 273, 279 (2006) (holding that a reprimand will serve notice to the respondent and the Bar that "this Court considers an attorney's lack of diligence and lack of communication with his client, serious matters").
Id. at 269-70, 920 A.2d at 465.
The cases of Taylor, supra, and Attorney Grievance Comm'n v. Sapero, 400 Md. 461, 929 A.2d 483 (2007), persuade us that, as was the situation in Mahone and the cases cited therein, we can protect the public and deter other lawyers from violating the Rules of Professional Conduct without disrupting Respondent's practice of law. In Sapero, while issuing a reprimand to a respondent whose compliance with Bar Counsel's document requests was untimely, this Court recognized the following mitigating factors: (1) respondent's misconduct was not detrimental to his clients, not intentional, and not motivated by fraud, (2) respondent did not benefit in any way from his negligence, and expended money to correct the mismanagement of his escrow accounts, (3) respondent showed remorse for his misconduct, and persuaded the hearing judge that such misconduct was unlikely to be repeated, and (4) "respondent ha[d] no record of any prior disciplinary action." Id. at 490-91, 929 A.2d at 501.
In Taylor, while issuing a reprimand to a respondent who misused his attorney-trust account, and who "failed to make timely responses to Bar Counsel's requests for information," this Court recognized the following mitigating factors: (1) the Page 572 respondent had not misappropriated or commingled client funds, (2) the trust account violations occurred at a time when the respondent was intending to close his practice, (3) the respondent ultimately did cooperate thoroughly with Bar Counsel, (4) the respondent did not act with a selfish or dishonest motive, (5) the respondent had no prior disciplinary record, and (6) no client suffered any actual harm. 405 Md. at 721, 955 A.2d at 769.
As the mitigating factors recognized in Sapero and in Taylor are present in the case at bar, Respondent is hereby reprimanded.
IT IS SO ORDERED; RESPONDENT SHALL PAY ALL COSTS AS TAXED BY THE CLERK OF THIS COURT, INCLUDING COSTS OF ALL TRANSCRIPTS, PURSUANT TO MARYLAND RULE 16-761, FOR WHICH SUM JUDGMENT IS ENTERED IN FAVOR OF THE ATTORNEY GRIEVANCE COMMISSION AGAINST THOMAS HOWARD QUEEN.
HARRELL, BATTAGLIA & BARBERA, JJ. dissent.
 Had Respondent merely turned Ms. Abarza's claim over to his malpractice carrier, the carrier might have chosen to defend Ms. Abarza's malpractice action on the ground that she was not entitled to a judgment against Respondent because the doctrines of contributory negligence or assumption of the risk would have prevented her from recovering any damages in the "slip and fall" action that Respondent had attempted to assert on her behalf. As the hearing judge noted, however, "[Respondent's] recommendation to Ms. Abarza that she hire counsel to assert a claim against him while there was a remote possibility that her action against Prince George's County could be revived coupled with his payment to Ms. Abarza without resort to his malpractice carrier evidenced an understanding of his mistakes and a principled effort to ensure that Ms. Abarza was fairly and fully compen-sated." Because the hearing judge was not clearly erroneous in finding that "Ms. Abarza was fairly and fully compensated," Respondent's negligent handling of her case did not constitute a violation of Rule 8.4(d).
 As to the issue of whether Respondent violated Rule 1.4, the hearing judge's Findings and Conclusions included a footnote stating that "Ms. Abarza was unclear as to how often she had spoken with Respondent[,] . . . forgot that she had filed the instant grievance[,] and that she had settled her claim against Respondent." Under these circumstances, we are unable to declare that the hearing judge was clearly erroneous in rejecting "permissible inferences which might have been drawn from the evidence by another trier of the facts." Hous. Opportunities Comm'n of Montgomery County v. Lacey, 322 Md. 56, 61, 585 A.2d 219, 222 (1991). As the Court of Special Appeals noted in Bricker v. Warch, 152 Md.App. 119, 831 A.2d 453 (2003): Although it is not uncommon for a fact-finding judge to be clearly erroneous when he [or she] is affirmatively PERSUADED of something, it is, as in this case, almost impossible for a judge to be clearly erroneous when he [or she] is simply NOT PERSUADED of something. Id. at 137, 831 A.2d at 464 (emphasis in original). We therefore overrule Petitioner's exception to the hearing judge's failure to find a violation of Rule 1.4.
 In O'Neill, the respondent was found to have made knowingly false statements to a judge, to an Assistant State's Attorney, and to a probation officer. 285 Md. at 53-4, 400 A.2d at 416. In Jaseb, the respondent was found to have (negligently) misrepresented "both fact and law" to a Circuit Court judge and to other parties to a garnishment proceeding. 364 Md. at 477, 773 A.2d at 523. In Lee, after accepting a $3,500 retainer to seek post-conviction relief on the complainant's behalf, "[r]espondent did not meet with his client until almost one year after payment of the fee." 390 Md. at 526, 890 A.2d at 278.
Dissenting Opinion by HARRELL, J., which BATTAGLIA and BARBERA, JJ., join.
As to the charge that Queen violated MRPC 1.4, the hearing judge's commingled findings of fact and conclusions of law do not disclose much with regard to her reasons for declaring, in a conclusory manner, that "Petitioner failed to establish by clear and convincing evidence that Respondent violated MRPC 1.4." The only hint from her findings and conclusion on this charge that reveal to me a glimpse of her possible reasoning is the credit she gives to Queen for being "fully forthcoming" about the Circuit Court's dismissal of Abarza's case, his urging of her to get another lawyer and to pursue Queen for legal malpractice, and turning over those portions of his file on her case so that the invited malpractice claim might be evaluated. While this conduct generally, and in isolation here, is praise-worthy, its value in deciding whether a violation of MRPC 1.4 occurred is slight; it is better considered in mitigation of sanction.
The hearing judge was clearly wrong in failing to recognize a violation of MRPC 1.4.
A failure to represent a client adequately violates MRPC 8.4(d). Attorney Grievance Comm'n v. Mooney, 359 Md. 56, 83, 753 A.2d 17, 31 (2000); Attorney Grievance Comm'n v. Brown, 353 Md. 271, 286, 725 A.2d 1069, 1076 (1999). It is clear that Queen failed to represent Abarza adequately. The hearing judge found that he "was negligent in his handling of Ms. Abarza's case." His failure to sue the correct legal entity or amend the misnomer resulted in dismissal of her complaint in the Circuit Court. He failed to communicate this fact to her for a year. He prosecuted (badly) an unauthorized appeal and, failing twice to meet briefing deadlines, caused the appeal to be dismissed by the Court of Special Appeals. Thus, we are not confronted here with a single instance of inadequate representation, albeit all of the mishaps affected a single client.
The hearing judge, in part, premised her finding that no violation of MRPC 8.4(d) occurred on an erroneous reliance on Comment 2 to MRPC 8.4 (addressing the implications of "illegal conduct" in a criminal sense and the archaic role of moral turpitude in determining whether such offenses constitute collateral ethical violations for attorneys). Comment 2 patently is directed to interpreting the proper application of MRPC 8.4(b) and/or (c), neither of which was Queen charged with violating in this case. This misunderstanding of the utility and application of Comment 2 to an analysis of whether a violation of MRPC 8.4(d) occurred erodes my confidence in her reasoning with its insertion of situationally irrelevant consideration of the non-existence of moral turpitude in this case. Moreover, she resorts here also to consideration of facts that bear more suitably on mitigation, rather than on the question of whether a violation occurred vel non, i.e., Queen's belated owning-up to his client regarding his negligence and paying her a settlement of her possible claim from his own Page 575 funds. Consequently, I would conclude that a violation of MRPC 8.4(d) was proved by clear and convincing evidence.
Joining my analysis supra to that of the unexcepted-to portions of the hearing judge's findings and conclusions and this Court's sustaining of Petitioner's exception regarding the MRPC 8.1(b) charge, Queen stands before me as having violated MRPC 1.1, 1.3, 1.4, 8.1(b) and 8.4(d). The appropriate sanction for those violations is a difficult call.
Indefinite suspension from the practice of law is the proper sanction where the attorney violates MRPC 1.3, 1.4, 8.1(b), and 8.4(d) by failing to communicate with the client and failing to cooperate with Bar Counsel and where the attorney's conduct is not so egregious that only disbarment can adequately protect the public. Attorney Grievance Comm'n v. Kovacic, 389 Md. 233, 884 A.2d 673 (2005). In Kovacic, the attorney violated MRPC 1.3, 1.4, and 8.1(b) by failing to communicate with her client in a divorce proceeding and failing to respond timely to Bar Counsel's inquiries. Kovacic, 389 Md. at 239, 884 A.2d at 676. Noting that there was "neither a finding, nor any basis for mitigating the respondent's misconduct," we imposed the sanction of indefinite suspension even though the attorney had no prior sanction history. Kovacic, 389 Md. at 240, 884 A.2d at 677. See also Attorney Grievance Comm'n v. Rose, 391 Md. 101, 113, 892 A.2d 469, 476 (2006) (holding that indefinite suspension is the proper sanction where the attorney violated MRPC 1.3, 1.4, 8.1(b), and 8.4(d), among others, for client neglect and failure to cooperate with Bar Counsel and had received previously an indefinite suspension with the right to seek reinstatement in six months for similar violations).
On the other hand, we also have imposed a sanction of reprimand for similar violations of the MRPC where there Page 576 are significant mitigating factors, such as remorse and a history of pro bono work by a respondent. Attorney Grievance Comm'n v. Tolar, 357 Md. 569, 745 A.2d 1045 (2000). The attorney in Tolar violated MRPC 1.3 and 1.4 by failing to communicate adequately to her client, and MRPC 8.1(b) by failing to respond to Bar Counsel's requests in the investigation. Despite her prior sanction history, consisting of two private reprimands, and her violations almost identical to those in Kovacic, she received the less severe sanction of a public reprimand because she was remorseful for her misconduct and because we found that repetition of the misconduct was unlikely. Tolar, 357 Md. at 585, 745 A.2d at 1053-54. We also found it significant in Tolar that the attorney provided considerable pro bono service to the community, another mitigating factor that called for a less severe sanction. Tolar, 357 Md. at 584, 745 A.2d at 1053.
In the instant case, Respondent's misconduct closely resembles that in Kovacic and Tolar. Among the rules violated by Respondent are MRPC 1.3, 1.4, and 8.1(b), the same rules violated by the attorneys in those two cases. Unlike the attorney in Kovacic, however, Respondent also violated MRPC 1.16, 3.2, and 8.4(d), and previously has received two sanctions for similar misconduct: a public reprimand in Lee II for violations of MRPC 1.3 and 1.4, and an indefinite suspension, with the right to reapply no sooner than one year, in Lee III for violations of MRPC 1.3, 1.4(a), 8.1(a), and 8.4(c). Thus, a sanction at least as severe as the one imposed in Kovacic is appropriate. Absent any significant mitigating factors, such as those substantiated in Tolar, indefinite suspension from the practice of law is the proper sanction for Respondent's violations in the present case.
Lee, 393 Md. at 564-66, 903 A.2d at 906-07.
It seems to me that the present case calls for a similar triangulation approach. Queen's violations and conduct are Page 577 not as egregious as in Lee and he does not have a prior record of disciplinary sanctions as did Lee. Thus, an open-ended indefinite suspension seems inappropriate. Queen's situation also has some mitigating factors, a la Tolar, though not all of the same character as in Tolar, here we have remorse, unlikelihood of repetition of the errant conduct, belated candor towards the client regarding his errors, and paying from his pocket to compensate the client for his errors and omissions. Yet, I am unable to reconcile a reprimand in the present case, in view of the indefinite suspension meted-out to the first-time offender in Kovacic.Feeling a little like a forward observer calling in artillery fire on a target, I would suspend Queen indefinitely, with a right to apply for reinstatement no sooner than 90 days following the effective date of the suspension.
Judge Battaglia and Judge Barbera authorize me to state that they join this dissent.
 Attorney Grievance Comm'n v. Lee, 390 Md. 517, 890 A.2d 273 (2006).
 Attorney Grievance Comm'n v. Lee, 393 Md. 385, 903 A.2d 360 (2006).
Decided on March 12, 2009 .

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D.C. Law Library - § 32–1201. Definitions.
This section is referenced in § 2-1411.03.
D.C. Law 13-237 added pars. (1A) and (4).
D.C. Law 18-33, in par. (2)(E), substituted “married to, or in a domestic partnership with,” for “married to”; and added par. (5).
Complaints of violations, enforcement, see § 2-1411.03.
For temporary (90-day) amendment of section, see § 4(a) of the District of Columbia Emancipation Day Emergency Amendment Act of 2000 (D.C. Act 13-307, April 7, 2000, 47 DCR 2710).
For temporary (90 day) amendment of section, see § 4(a) of District of Columbia Emancipation Day Congressional Review Emergency Amendment Act of 2001 (D.C. Act 14-20, March 16, 2001, 48 DCR 2699).
For temporary (225 day) amendment of section, see § 4(a) of District of Columbia Emancipation Day Temporary Act of 2000 (D.C. Law 13-152, July 18, 2000, law notification 47 DCR 6102).
Delegation of authority pursuant to D.C. Law 10-146, the “D.C. Parental Leave Act of 1994”, see Mayor’s Order 95-66, May 2, 1995.
Resolution 14-409, the “Council Emancipation Day Delegation Emergency Resolution of 2002”, was approved effective April 9, 2002.

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Coco Fusco is a New York based interdisciplinary artist and writer. Fusco's performances include Votos (2000), Stuff (with Nao Bustamente 1996-99), Sudaca Enterprises (1997), The Last Wish (1997), Rights of Passage (1997), Mexarcane (1995) and Two Undiscovered Amerindians Visit the West (1992-1994). Her work has been included in The Whitney Biennial, the Sydney Biennial, The Johannesburg Biennial, The Kwangju Biennale, The Bienal Barro de America in Caracas, The International Art Festival of Medellin, The London International Theatre Festival, the National Review of Live Art, The International Performance Festival in Odense, Denmark, the Hull Time Based Arts Festival. Her videos include PochoNovela (1995) and The Couple in the Cage (1993) and Havana Postmodern: The New Cuban Art, all of which have been broadcast on public television.
She has performed, lectured, exhibited and curated throughout the U.S., Europe, Canada, Australia, South Africa and Latin America. She is the author of ENGLISH IS BROKEN HERE (1995) and the editor of Corpus Delecti: Performance Art of the Americas (1999). A new collection of her essays and performance texts since 1995 will be published by Routledge in 2001. She is an associate professor at the Tyler School of Art of Temple University.
In December, Fusco will present a new performance entitled Out of Place at the new Kunsthalle in Vienna. She is currently creating a video installation for the Unpacking Europe exhibition that will be part of Rotterdam's European Cultural Capital events in 2001. Fusco is also curating a comprehensive exhibition on racial taxonomy in American photography for the International Center for Photography that will open in 2002.
by Claire Taylor. Journal of Iberian and Latin American Research, Dec. 2012, v. 18, no. 2.
by Kirsty Robertson. Sorting Daemons: Art, Surveillance Regimes and Social Control, 2010. Kingston: Agnes Etherington Art Centre, 2010.
by Coco Fusco. Journal of Media Practice, 2010, v. 11, no. 1.
by Sandra Ceballos Obaya and Coco Fusco. TDR: The Drama Review, 2010, v. 54, no. 3.
by Karen Beckman. Framework: The Journal of Cinema and Media, Spring 2009, v. 50, no. 1.
by Jose Esteban Munoz. TDR: The Drama Review, 2008, v. 52, no. 1.
by Not Attributed. Art in America, Nov. 2005, v. 93, no. 10.
by Coco Fusco and Ricardo Dominguez. The Drama Review, Summer 2003, v. 47, no. 2.
by Ana Nuño. Nka: Journal of Contemporary African Art, Fall 2002, no. 16/17.
by Jim Drobnick. Sexuality & Culture, Summer 2000, v. 4, no. 3.
by Mary Kate Kelly. College Literature, Winter 1999, v. 26, no. 1.
by Rachel Kranz. The Women's Review of Books, Sept. 1995, v. 12, no. 12.
by Charles Green. Artforum, Apr. 1993, v. 31, no. 8.
by Donald Garfield. Museum News, Mar. Spring 1993.
by Coco Fusco. Afterimage, Feb. 1991, v. 18, no. 7.
by Coco Fusco. Afterimage, May 1990, v. 17, no. 10.
by Coco Fusco. Afterimage, Dec. 1988, v. 16, no. 5.
by Coco Fusco. Afterimage, Feb. 1988, v. 15, no. 7.
by Coco Fusco. Afterimage, Sept. 1987, v. 15, no. 2.

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