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Editor: Mitchell H. Rubinstein
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Tuesday, April 29, 2014

Tennessee: Judge's Facebook Use Does Not Lead To Recusal

Tennessee v. Madden, No. M2012-02473-CCA-R3-CD (Tenn. Crim. App., March 11, 2014), involves a second degree murder prosecution in which the defendant was a Middle Tennessee State University ("MTSU") student and the victim was a member of the MTSU women's basketball team.  During the case, the defendant moved to recuse the judge presiding because that judge had a "substantial and material connection" to MTSU.  Defendant noted the judge had 205 Facebook connections to individuals at MTSU, including with the head women's basketball coach, a witness in the case.  Defense counsel said he was not able to affirm whether the judge visited any particular Facebook pages.  The judge unfriended "numerous" MTSU connections after counsel filed the recusal motion.  The judge stated during the hearing, "[t]o be quite honest I didn't think my Facebook page was public" and that he originally believed defense counsel "hacked into my account or got somebody to pretend to be my friend and went through all that stuff."

The appeals court affirmed the trial judge's denial of the motion to recuse, but not without important comment.  First, the appeals court described a heated exchange between the trial judge and the defense attorney that culminated with the judge, "chastis[ing] defense counsel for, among other things, "filing a motion that called into question the people's faith in the judicial system and 'dimishe[d] our entire court system."  The court affirmatively stated it did not condone all that transpired below when the record showed defense counsel was merely advocating zealously for his client.  The court, however, conclude the "defendant...failed to identify any concrete manner in which she was disadvantaged by any bias on the part of the trial court."

The appellate court added (internal citations omitted):

If the public is to maintain confidence in our system of justice, a litigant myst be afforded the "cold neutrality of an impartial court."  The overall tenor of some of the questions asked and statements made by the trial court to defense counsel during the hearing concerning the defendant's recusal motion reveal that the trial judge was upset, perhaps because he felt that defense counsel had violated his privacy by visiting his Facebook page (and the pages of individuals listed as his "friends" on that page).  However, the record reflects nothing other than zealous representation on the part of defense counsel.

...When engaging in physical and on-line contact with members of the community...judges must at all times remain conscious of the solemn duties they may later be called upon to perform.  Perhaps someday, our courts will follow the lead of Maryland, which has concluded that its judges must accept restrictions on online conduct that might be viewed as burdensome to ordinary citizens and prohibits the "friending" of attorneys and witnesses likely to appear before a judge.  In the meantime, judges will perhaps best be served by ignoring any false sense of security created by so-called "privacy settings" and understanding that, in today's world, posting information to Facebook is the very definition of making it public.

One judge concurring noted that a month earlier, the court held that a judge's Facebook friendship with a confidential informant did not require recusal where the record failed to show the length of the Facebook friendship or the extent or nature of their interaction.  The concurring judge also wrote, "In this case, although one Facebook 'friendship' was sufficient to scruitinize the judge's impartiality, the record does not demonstrate more than a "virtual" acquaintance between the trial judge and the prospective witness."  Judges should strongly consider whether or not such scrutiny is best left uninvited. 

See Also:

Craig Estlinbaum

April 29, 2014 in Ethics, Judges, Technology | Permalink | Comments (0)

Thursday, April 17, 2014

Law Practice's Brave New World

Technology advances have changed the way law gets practiced and attorneys not keeping up with the changes are on a road to professional ruin.  This at least is the conclusion a judicial panel reached at a recent LegalTech New York conference, reports Joe Dysart, ABA Journal.  The judges' comments touched upon e-discovery, ethics and technology.  One panelist, U.S. Magistrate Judge James C. Francis of New York's Southern District, summarized, "The absence of technical knowledge is a distinct competitive disadvantage."

Craig Estlinbaum

 

 

April 17, 2014 in Conferences, CLE, Ethics, Technology | Permalink | Comments (1)

Tuesday, April 1, 2014

Attorneys and Depression

Brian Clarke (Charlotte) has written an extremely important and ultimately courageous post, "Law Professors, Law Students and Depression . . . A Story of Coming Out (Part 1)" at The Faculty Lounge on depression and anxiety's alarming incidence among attorneys.  Clarke relates some truly disturbing statistics on depression and suicide in the legal profession (emphasis in original):

Lawyers, as a group, are 3.6 times more likely to suffer from depression than the average person. Of 104 occupations, lawyers were the most likely to suffer depression.  (Both of these statistics are from a Johns Hopkins University study to which I cannot find a link). 

Further, according to a two-year study completed in 1997, suicide accounted for 10.8% of all deaths among lawyers in the United States and Canada and was the third leading cause of death.  Of more importance was the suicide rate among lawyers, which was 69.3 suicide deaths per 100,000 individuals, as compared to 10 to 14 suicide deaths per 100,000 individuals in the general population.  In short, the rate of death by suicide for lawyers was nearly six times the suicide rate in the general population. 

Clarke continues along this vein and introduces his own story fighting mental illness in this first in a three-part series on the subject. 

Some states have added a mental health component to the continuing legal education requirements, and many state bar associations have established hotlines and resources for attorneys battling mental illness.  The Texas Lawyers Assistance Program serves this latter function in Texas -- the Program's 24-hour hotline number is 1-800-343-8527. 

Craig Estlinbaum

April 1, 2014 in Blogs, Faculty, Ethics, Law Schools, Law Students, Lawyers | Permalink | Comments (0)

Saturday, March 22, 2014

A Cautionary Tale

Kendall D. Isaac (Appalachian) provides a cautionary tale at the Appellate Advocacy Blog (link).

Craig Estlinbaum

March 22, 2014 in Blogs, Faculty, Ethics, Law Professors, Lawyers | Permalink | Comments (0)

Thursday, March 13, 2014

Judicial Campaigns, Facebook and the Appearance of Impropriety

A committee supporting a trial judge's re-election creates a Facebook page supporting the campaign.  That page allows the judge's supporters and others in the community to post comments on the page, including comments on pending cases.  Attorneys in one such case move to disqualify or recuse that judge because comments posted on the campaign's page by others -- not the judge and not the parties or their attorneys -- about the pending case "gives the appearance of impropriety and a lack of impartiality."  What is the result?

Earlier this month, a three-justice panel from the New Mexico Supreme Court denied a motion to disqualify a judge under such circumstances in a civil case.  A New Mexico company, Valley Meat Co., filed the motion to disqualify after the judge granted the Attorney General's application for temporary restraining order preventing Valley Meat from opening a horse slaughterhouse facility near Roswell.  According to the reports, the Attorney General sought to block the slaughterhouse from opening because of "food and water safety concerns and unfair business practices."  Valley Meat sought to disqualify the judge because of comments posted by horse slaughter opponents on a the judge's election campaign Facebook page.

Writing about the case in February, Scott Sandlin of the Albuquerque Journal News examined some implications associated with increased social media use by judges  and also provided greated back story to this case and Valley Meat's motion to disqualify.  The panel's order itself does not appear to be available online at this time.

Several states and the American Bar Association have pubished opinions relating to social networking by judges.  Little attention has been paid in these opinions to when, if at all, judicial campaign activity intersects with judical ethics restrictions on social media use.  As judicial elections utilize social media in greater numbers, expect to see more cases like this New Mexico case arise.

See Also:

Craig Estlinbaum

March 13, 2014 in Ethics, Interesting Cases, Judges | Permalink | Comments (0)

Wednesday, March 12, 2014

Facebook Friendship Leads to Disqualification

A Fresno, California judge has disqualified himself from a civil case after the trial's conclusion but before signing the final judgment following his admission that he was Facebook friends with an attorney in the case.  The Fresno Bee reports:

The judge who smacked Paul Evert's RV Country with a $4.5 million defamation verdict has disqualified himself from the case after he admitted that he was Facebook friends with one of the lawyers who prevailed in the Fresno County Superior Court civil trial.

Judge Jeffrey Hamilton's decision to give up the case appears to follow state judicial ethics guidelines. It also puts the verdict in question because he had not signed the final judgment, and could give rise to Evert and his employees getting a new trial.

The story suggests that prior to trial commencing, the judge revealed to all parties that he was friends with the plaintiff's attorney.  No party lodged an ojection to the judge presiding upon that revelation.  However, the judge failed to disclose his Facebook friendship until after he ruled for the plaintiff, who was represented by his Facebook friend, in a non-jury trial.  In the defense motion to disqualify, defense counsel claimed that the judge's relationship with plaintiff's counsel was "was closer than had been previously disclosed by Judge Hamilton," and that had the Facebook connection been disclosed, defendant would not have waived a jury trial.

Notably, California Judge's Association Judicial Ethics Opinion No. 66 (2010) relating to judicial use of social networking states:

When a judge learns that an attorney who is a member of that judge’s online social networking community has a case pending before the judge the online interaction with that attorney must cease (i.e. the attorney should be“unfriended”) and the fact this was done should be disclosed ... Regardless of the nature of the social networking page, maintaining online contacts while a case is pending creates appearance issues that cannot be overcome through disclosure of the contacts.

See Also:

Craig Estlinbaum

 

March 12, 2014 in Ethics, Judges, Lawyers, Legal News | Permalink | Comments (1)

Tuesday, March 4, 2014

Eldred: Ethics And The Response To Ineffective Assistance Claims

Tigran Eldred (New England Law) has posted "Motivation Matters: Guideline 10.13 and Other Mechanisms for Preventing Lawyers from Surrendering to Self-Interest in Responding to Allegations of Ineffective Assistance in Death Penalty Cases" on SSRN.  The article is forthcoming in the Hofstra Law Review.  Here is the abstract:

Defense lawyers whose clients are sentenced to death are virtually guaranteed to be accused of ineffective assistance of counsel. The question is how they will respond. On one hand, lawyers alleged to be ineffective are obligated under Guideline 10.13 of the American Bar Association’s Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases to continue to safeguard the interests of their former clients, a duty that includes full cooperation in appropriate legal strategies chosen to pursue the ineffectiveness claim. On the other hand, lawyers who are accused of ineffectiveness often react defensively to the allegation, reflexively viewing the claim of poor performance as an attack on their competency and reputation. To date, there has been no systematic attempt to understand how these tensions are mediated and resolved.

To fill this gap, this article explores the psychological dimensions of how lawyers can be expected to respond to allegations of ineffectiveness. Relying on empirical research into “motivated reasoning” – a phenomenon that describes the many ways in which people unconsciously seek out, interpret and recall information in a manner that is consistent with their pre-conceived wishes and desires – it argues that motivation can be expected to play a dominant role in how lawyers respond to alleged ineffectiveness. Further, because motivation exercises its power implicitly, efforts to encourage compliance with the obligations set forth in Guideline 10.13 must take into account the subtle psychological forces that influence behavior. Simply put: motivation matters.

Counsel's ethical obligations in response to an effective assistance claim is an important and often overlooked study area.  Such such claims are frequent in the criminal system, and are frought with ethical landmines.  Attorneys facing such a claim must answer the claim with due regard to the duty to maintain client confidentiality. Under what circumstances may an attorney reveal client confidences when responding to the ineffective assistance claim?  This is a serious question attorneys and courts must address in such cases. 

Professor Eldred gives criminal law attorneys much to consider when confronting a claim that representation rendered to a client has been deficient.   He has highlighted important ethical considerations an attory must weigh when responding to an ineffecitve assistance claim.  The paper is also useful to judges that issue orders compelling responses to such claims.  I don't agree with everything Eldred has written, but on the whole, this paper covers new ground and will be useful to practicing lawyers and judges.

Craig Estlinbaum

March 4, 2014 in Constitutional Law, Ethics, Law Review Articles | Permalink | Comments (0)

Wednesday, February 12, 2014

Georgia: Legal Ethics & Professionalism Symposium

The University of Georgia School of Law is hosting its 14th Annual Legal Ethics & Professionalism Symposium on February 21, 2014, at the law school campus.  The symposium is titled, "Who Are They to Judge? Ethical and Professionalism Issues Facing the Bench."  Here is the description from the symposium website:

This annual legal ethics symposium is titled "Who Are They to Judge? Ethical and Professionalism Issues Facing the Bench." Members of the judiciary are facing increasing ethical challenges and being subjected to enhanced scrutiny as a result of the changing dynamics of both their jobs and the legal profession more generally.  During this symposium, an impressive lineup of judges, attorneys and professors will examine three important areas in this regard: (1) judicial elections and their effect on the decision-making process; (2) collegiality, decorum, and civility between the bench and the bar; and (3) the process, results, and aftermath of investigations into alleged judicial misconduct.

Here is the link for registration and program information.

Craig Estlinbaum

February 12, 2014 in Conferences, Faculty, Ethics, Judges | Permalink | Comments (0)

Tuesday, February 4, 2014

Judge Is Disqualified After Sending Litigant a Facebook Friend Request

A Florida appellate court recently held that a motion to disqualify a judge should be granted where the judge in a divorce proceeding, sent a Facebook friend request to a litigant in the proceeding and the litigant refused the request.  The case is Chace v. Loisel, No. 5D13-4449 (Fla. Dist. Ct. App., January 24, 2013).

In this case, the judge, during the divorce proceeding, "reached out" to the party by making a Facebook friend request.  The party declined the request.  That party later claimed the judge retaliated against her by awarding her most of the marital debt.  The party filed a motion to disqualify which the trial court denied.

The appellate court wrote:

It seems clear that a judge’s ex parte communication with a party presents a legally sufficient claim for disqualification, particularly in the case where the party’s failure to respond to a Facebook  “friend” request creates a reasonable fear of offending the solicitor. The “friend” request placed the litigant between the proverbial rock and a hard place: either engage in improper ex parte communications with the judge presiding over the case or risk offending the judge by not accepting the “friend” request.

Florida Judicial Ethics Advisory Committee Opinion 2009-20 provides that by designating an attorney as a Facebook friend, a judge, "reasonably conveys to others the impression that these lawyer 'friends' are in a special position to influence the judge."  Florida takes a restrictive approach to judicial use of social media so the outcome in this case is not surprising.

Craig Estlinbaum

February 4, 2014 in Ethics, Interesting Cases, Judges | Permalink | Comments (0)

Thursday, October 24, 2013

Cohen on State v. Miller

Writing at The Atlantic, Andrew Cohen of the Brennan Center comments on the recent New Jersey Supreme Court case State v. Miller, A-35-11 (N.J., October 2, 2013).  His essay, "How Much Does a Public Defender Need to Know About a Client?" is here.

Craig Estlinbaum

October 24, 2013 in Constitutional Law, Criminal Law, Due Process, Ethics | Permalink | Comments (0)

Wednesday, October 9, 2013

South Texas Law Review: Bankruptcy Ethics Symposium

South Texas Law Review will host its 20th Annual Ethics Symposium, Bankruptcy: Best Practices from the Bench and Bar, on October 25, 2013 at the Garrett Townes Auditorium on the South Texas College of Law campus in Houston.

Speakers include Hon. Jeff Bohm, Hon. Karen K. Brown, Hon. Marvin Isgur, Hon. David Jones and Hon. Letitia Z. Paul, all bankruptcy judges in the Southern District of Texas, plus several leading members of the Harris County bankruptcy bar.  The full program is here.

Registration information is here (repaired link).

Craig Estlinbaum

October 9, 2013 in Conferences, CLE, Ethics, Law Review Articles | Permalink | Comments (0)

Thursday, May 23, 2013

Texas: Facebook "Friendship" Alone Does Not Require Recusal

The Fifth Circuit Court of Appeals of Texas, located in Dallas, held last week that a trial judge's undisclosed Facebook  "friendship" with the victim's father in a criminal prosecution alone does not establish grounds for recusal or disqualification.  Youkers v. State of Texas, No. 05-11-01407-CR (Tex. App. -- Dallas, May 15, 2013). 

Defendant in the case pled guilty to assault of his pregnant girlfriend and received a 10-year sentence suspended for 5-years plus a $500 fine.  Three months, later, the State filed a motion to revoke.  Defendant entered an open plea of true to the motion's allegations at the revocation hearing.   The trial judge sentenced Defendant to eight-years in the state penitentary and later denied the motion for new trial.  The Defedant argued on appeal that he was entitled to the new hearing because the judge and the victim's father were undisclosed Facebook "friends" and that the judge had received an improper ex parte message (one favorable to the Defendant) via Facebook from the victim's father prior to sentencing.

The court analyzed the case facts, applicable canons, and further applied the recent ABA Standing Comm. on Ethics & Prof. Responsibity, Formal Op. 462 (February 21, 2013) (authorizing judges to participate in social networking providing such participation complies with relevant ethics rules).  The appellate court also examined other Texas cases involving cases where judges presided in cases where the judge had a seemingly close, public relationship with a party.  For example, in Lueg v. Lueg, 976 S.W.2d 308, 311 (Tex. App--Corpus Christi 1998, pet denied), cited by the Dallas court, another intermediate appellate court held that the mere fact that a party was a former campaign manager for the judge alone was insufficient to require the judge's recusal.  The court rejected Defendant's claim of actual and apparent impartiality on the record and affirmed that ground.

Not all states agree with the approach taken by the ABA (and this Texas court) on judges using social media.  Last September, for example, the Florida appeals court held that a judge's Facebook friendship alone presents grounds for disqualification.  Domville v. State of Florida, 103 So.3d 184 (Fla.Cir. Ct. 2012) (covered by this blog here).  Florida's state judicial ethics commission had previously rendered an opinion applying a restrictive approach to social media use for judges - a different approach than the one adopted by the ABA.

The permissive approach to judicial social media use adopted by the ABA and this Texas Court requires fact-intensive analysis into the relationship between the judge and the social media friend in recusal and disqualification issues.  For this reason this issue now of first impression is one likely to be revisited frequently in states applying the ABA's permissive guidelines as more judges enter the social networking world.

Craig Estlinbaum

May 23, 2013 in Ethics, Interesting Cases, Judges, Recent Developments, Texas Law, Web/Tech | Permalink | Comments (0)

Sunday, May 19, 2013

Files on Conflicts of Interest

Tyler, Texas attorney and State Bar of Texas President Buck Files has written an informative essay on conflicts of interest which appears in the April 2013 Voice for the Defense (page 15).  The essay uses the federal case U.S. v. Lopesierra-Gutierrez, No. 07-3137 (D.C. Cir. March 1, 2013) as a starting point to highlight how important it is to be mindful of conflicts when representing defendants in criminal cases - and by extension, any client in any case.  Some conflicts are waivable and some are not and knowing the difference between the to might save the practicing attorney a trip before a grievance committee a time or two.

Craig Estlinbaum

May 19, 2013 in Articles, Criminal Law, Ethics, Interesting Cases | Permalink | Comments (1)

Tuesday, April 23, 2013

Probable Cause Order Details Charges Against Former Texas Prosecutor

On April 19, a Texas court of inquiry charged former Williamson County, Texas district attorney (and current Texas district judge) Ken Anderson with criminal contempt of court, tampering with or fabricating physical evidence and tampering with government records arising from Anderson's prosecution of Michael Morton for the murder of his wife while he was district attorney.

Quite famously it was later shown, after Morton spent 25 years in a Texas prison, that Morton did not in fact murder his wife.  Over the years, there has been volumes written on this tragic miscarraige of justice - Texas Monthly's comprehensive case coverage is as good a starting place as any for the uninitiated. 

In any event, the probable cause order entered by the court of inquiry's presiding judge along with the supporting findings of facts and conclusions of law are now available online hereThis article in the Sunday Austin American-Statesman points out that Anderson's statute of limitations defense may be the first hurdle current Williamson County prosecutors have to clear before the charges against Anderson can be brought to a jury.

Hat Tip:  Grits For Breakfast

Craig Estlinbaum

April 23, 2013 in Criminal Law, Current Events, Ethics, Texas Law | Permalink | Comments (0)

Thursday, February 7, 2013

Effective Assistance in Plea Negotiations Symposium at Duquesne

Professor Doug Berman at Sentencing Law & Policy commented this morning on what promises to be a very timely and important symposium upcoming at Duquesne Law School. The syposium is called "Plea Bargaining After Lafler and Frye" and will be held February 28-March 1 at Duquesne in Pittsburgh in cooperation with the Criminal Justice Section, White Collar Crimes Committee, Mid-Atlantic Region.  The symposium schedule is here.

Craig Estlinbaum

February 7, 2013 in Conferences, CLE, Criminal Law, Ethics, Law Schools | Permalink | Comments (0)

Friday, September 21, 2012

Florida: Facebook Friendship Leads to Judicial Disqualification

Earlier this month, a Florida appellate court held that a defendant's motion to disqualify a trial judge was legally sufficient to require disqualification where the trial judge was a Facebook friend with the prosecutor assigned to the case.

In Domville v. State of Florida, No. 4D12-556, 2012 WL 3826764 (Fla.Dist.Ct.App. Sep. 5, 2012), the defendant filed the motion to disqualify the judge alleging that the judge and prosecutor assigned to the case were Facebook friends.  The trial judge denied to motion as legally insufficient.

The appellate court relied upon a 2009 Florida Judicial Ethics Advisory Committee opinion that concluded that the Florida Code of Judicial Conduct precluded a judge from both adding attorneys that appeared in their courts as friends, and allowing attorneys so appearing to add the judge as a friend.  The Committee opined that such conduct violated Florida Code of Judicial Conduct, Canon 2B which prohibits judges from conveying or permitting others to convey, "the impression that they are in a special position to influence the judge."  The Committee also concluded that a judge that Facebook friends an attorney "reasonably conveys to others" the impression that the attorney is in fact in a special position to influence the judge.

The appeals court quashed the trial court's order denying disqualification as a matter of law and returned the case to the trial court for further proceedings.

To date, Massachusetts and Oklahoma judicial ethics committees have joined Florida in taking a restrictive approach to judges using social media.  The Massachusetts Committee's opinion on the subject goes so far as to state that a judge may friend an attorney on social media only when that judge would recuse herself if and when the friended attorney appeared before her.

Even in states where judicial ethics committees have taken a permissive approach to judicial use of social media, judges may face disqualification or recusal motions in similar circumstances.  The law in this area is very new and uncertain as judges, attorneys and ethics committees develop policies and implement guidelines for judicial use of social media.

Craig Estlinbaum

September 21, 2012 in Ethics, Interesting Cases, Judges | Permalink | Comments (1)

Thursday, January 6, 2011

Lawyer Disciplined For False Notarization Of Court Papers

Matter of Essien, ____A.D.3d___, 2010 N.Y. Slip Op. 06512 (1st Dep't. August 31, 2010), reminds us that no matter how easy it might be to do, a lawyer should never, repeat never, notarize a signature if he did not see the person sign the document. This lawyer did just that. He was disciplined by the 1st Department with a public censure. 

Of course, notaries should also never falsely notarize a dcoument and if they do they can loose their license. 

Mitchell H. Rubinstein

January 6, 2011 in Ethics, Lawyers | Permalink | Comments (1)

Sunday, October 17, 2010

Lawyer Reprimanded For Plagiarism

In re: Cannon is an interesting case from the Supreme Court of Iowa. In a brief a lawyer admitted to plagiarism. Specifically, he copied 17 pages from an article without proper attribution. What is significant about this case is that it confirms that lawyers can face discipline for plagiarism.

Mitchell H. Rubinstein

Hat Tip: Legal Skills Prof Blog

Additional coverage on Legal Profession Prof Blog

 

October 17, 2010 in Ethics | Permalink | Comments (1)

The Importance Of Engagement Letters

Engagement and Closing Letters is an interesting article from the July 6, 2010 New York Law Journal. As the article explains, it is critical to draft appropriate engagement and closing letters which defined the scope of representation to avoid ethicial and disqualification issues. As the article states:

Thus, this case illustrates the value of using written engagement agreements for each new matter, even if the client is an established one. The case also implicitly recognizes the value of preparing non-engagement letters when dealing directly with unrepresented parties. An explicit communication of non-engagement is especially valuable when the law firm has formerly represented the now opposing, non-represented party. Any communications with non-represented parties should begin with a written statement that the lawyer is not representing that party, and recommending that the party retain his own attorney if he feels it is necessary.

The second case, from New Jersey, also illustrates the importance of crafting engagement letters to identify with clarity who are—and who are not—intended to be the clients in a newly forming attorney-client relationship. In Kurre v. Greenbaum, Rowe, Smith, Ravin, Davis, and Himmel, LLP, 2010 WL 2090092 (N.J. Super. Ct. App. Div., April 16, 2010), two large shareholders for Labriola Motors, Elizabeth Labriola Kurre and Michael Labriola (plaintiffs), sued Greenbaum Rowe Smith Ravin Davis & Himmel and partners thereof (Greenbaum) for individual malpractice damages arising out of a failed transaction.

Labriola Motors, a Nissan franchise, experienced financial difficulties causing Nissan to urge the company to sell to avoid termination of the franchise. Labriola Motors retained Greenbaum to represent it in a proposed sale. The retainer letter specifically advised plaintiffs and the other shareholder that because their "interests and concerns as shareholders of the Company differ in connection with the proposed transaction," each "should retain independent legal counsel."

Further, by countersigning the letter plaintiffs acknowledged "that (i) this firm will represent only the Company in connection with the proposed transaction, and (ii) this firm has advised you of your right to obtain independent legal counsel" by signing the retainer agreement. In fact, plaintiffs did retain their own counsel.

The Appellate Division affirmed summary judgment for Greenbaum on the basis that plaintiffs had no standing to sue. First, the retainer agreement plaintiffs signed precluded any consideration that Greenbaum represented them personally. Indeed, plaintiffs actually had engaged their own counsel for the entire period in question.

Second, the court held that although lawyers can in some circumstances be sued by third parties who rely on their advice, here plaintiffs were a part of the corporate client and had no right to rely on anything said by Greenbaum except to make decisions as shareholders.

Mitchell H. Rubinstein

October 17, 2010 in Articles, Ethics | Permalink | Comments (0)

Thursday, June 10, 2010

Attorney Disciplined For Providing False Leave Report To Her Employer

Scalesofjustice

Matter of Stewart, ____A.D.3d_____(1st Dep't. April 15, 2010), demonstrates that an attorney employee can be disciplined for misconduct at the workplace. Here, the attorney pleaded guilty to one count of petit larceny in violation of Penal Law § 155.25, a class A misdemeanor, in full satisfaction of all charges brought against her for providing a false document. Her purpose was to receive paid leave to which she would have otherwise not been entitled. On October 10, 2008, she was sentenced to a one-year conditional discharge.The court suspended her from the practice of law for 6 months.

Mitchell H. Rubinstein

June 10, 2010 in Employment Law, Ethics | Permalink | Comments (0)