Friday, September 23, 2016

Consent Suspension In Louisiana

The Louisiana Supreme Court accepted a consent suspension of an attorney whose federal suspension was recently affirmed by the United States Court of Appeals for the Fifth Circuit.

Respondent and the Office of Disciplinary Counsel submitted a joint petition for consent discipline in which respondent acknowledges that he engaged in conduct that was prejudicial to the administration of justice and implied an ability to improperly influence a judge, in violation of Rules 8.4(d) and 8.4(e) of the Rules of Professional Conduct.

Having reviewed the petition, IT IS ORDERED that the Petition for Consent Discipline be accepted and that Joseph N. Mole, Louisiana Bar Roll number 9538, be suspended from the practice of law for one year, with all but six months deferred

The conduct in the federal matter related to an effort to recuse since-impeached Judge Thomas Porteous.

A single judge of the district court had recommended dismissal but 

The en banc court disagreed. It found that “the clear and convincing evidence introduced at the Senate hearing and before this Court establishes Mr. Mole selected and recommended Mr. Gardner to represent Lifemark because of Mr. Gardner's close friendship with Porteous and with the intent to get Porteous recused,” and that “the clear and convincing evidence establishes the [$100,000] severance fee in the letter agreement was intended to provide an incentive for Mr. Gardner to achieve this result.” The en banc court found that Mole's conduct violated Rules 8.4(d) and (e) of the Louisiana Rules for Professional Conduct and suspended him from practice before the court for one year, with six months deferred. This appeal followed...

The en banc court found that Mole hired Gardner to prompt Porteous's recusal after reviewing testimonial evidence derived from both the Senate hearings and Mole's own disciplinary hearing before Judge Berrigan, as well as documentary evidence such as the retention letter between Mole and Gardner. The en banc court found the “testimony that the terms of the letter agreement were not drafted in an attempt to secure the recusal of Porteous to be incredible.” The en banc court highlighted Mole's testimony before the Senate, where Mole admitted that “getting the judge to recuse himself would be the only way to get a fair outcome”; “getting Judge Porteous to recuse himself was a priority with [him], and one of the things [he] hoped Mr. Gardner's presence in the case ․ would accomplish”; and that he “certainly considered that maybe if [Gardner] got involved ․ Porteous didn't have a legal responsibility to recuse himself because of that but that he might.” The en banc court also noted that it “did consider evidence presented at the [hearing before Judge Berrigan], but also gave weight to the sworn testimony before the Senate ․ given at a time when the witnesses had no personal stake in the outcome.” The en banc court thus concluded that, “[t]aken as a whole, the evidence provided clear and convincing evidence that Mr. Mole's intent was to prompt former Judge Porteous's recusal.”

Based on all of the above, the en banc court's conclusion is plausible. First, Mole's Senate testimony contains numerous admissions regarding his hope that the retention of Gardner might prompt a recusal. Second, the $100,000 severance fee in the retention letter incentivizes the prospect of a recusal. A lthough Mole claims that the severance fee was merely intended to “buy out” Gardner, the evidence shows that Gardner never requested such a provision in the agreement. Mole also acknowledged that if Porteous had recused himself immediately upon Gardner's enrollment, Gardner would have received the full $200,000 payment for enrollment and severance, despite not doing any work. This shows that the severance fee was unrelated to any labor Gardner may have performed on the case or any opportunity cost he may have incurred in time away from his own practice. It is therefore plausible that the purpose of the severance fee was to prompt a recusal.

Finally, even if we find Mole's version credible, “[i]f the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Brumfield v. Cain, 808 F.3d 1041, 1057 (5th Cir.2015) (quoting Anderson v. Bessemer City, 470 U.S. 564, 573–74, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)). And “[w]here there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous.” Anderson, 470 U.S. at 574. Because the en banc court's determination that Mole hired Gardner to obtain Porteous's recusal is plausible in light of the record as a whole, we cannot set aside that finding.

The Fifth Circuit rejected a variety of procedural and substantive objections to discipline. (Mike Frisch)

September 23, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Not To Late To Sue

A legal malpractice suit was not time-barred, according to an opinion of the Alaska Supreme Court. 

A client personally financed the sale of his business corporation. His attorney drafted documents that secured the buyer’s debt with corporate stock and an interest in the buyer’s home. Over seven years later the government imposed tax liens on the corporation’s assets; according to the client, it was only then he learned for the first time that his attorney had not provided for a recorded security interest in the physical assets. The client sued the attorney for legal malpractice and violation of the Alaska Unfair Trade Practice and Consumer Protection Act (UTPA).

The superior court held that the statute of limitations barred the client’s claims and granted summary judgment to the attorney. But we conclude that it was not until the tax liens were filed that the client suffered the actual damage necessary for his cause of action to be complete. We therefore reverse the judgment of the superior court and remand the case for further proceedings.

The statute does not begin to run until all elements of the action exist.

In this case the superior court found that Jones was injured when he and Grunwald signed a sale document that failed to secure Jones’s interest in the business assets. The court reasoned that once Jones had contracted for an inadequate security interest, the attorney’s alleged failure to meet his professional duty of care had injured Jones and the malpractice claim accrued.

But Jones did not suffer any appreciable injury at the time the sale documents were signed in 2004. Like the plaintiffs in Austin, Jones received a contract that was less than he allegedly expected it to be, since it failed to give him a security interest in the corporation’s physical assets. But as long as Grunwald substantially abided by his contractual obligations, Jones had no reason to execute on a security interest and therefore suffered no actual injury from being unable to do so.

Nor did Jones suffer an appreciable injury in October 2005, when the escrow manager first notified him that Grunwald had missed a payment. Jones agreed to extend Grunwald’s payments at that time and to work out an alternative arrangement rather than foreclose on the debt. Because the stock purchase agreement allowed this forbearance without waiving “any obligation of Debtor or right of Secured Party,” Jones again suffered no injury. And Grunwald continued to make at least partial or late payments through February 2012. Jones was satisfied with the parties’ arrangement and did not attempt to use any remedies he would have had as a secured party; he therefore continued to suffer no harm from his lack of a security interest.

.Jones did suffer an appreciable injury in late 2011. The IRS recorded liens on Northern Heating’s physical assets on October 31 and November 14 of that year; at that time Jones lost his ability to acquire anything greater than junior lienholder status. Since the legally protected interest at issue was Jones’s ability to recover the corporation’s physical assets in case of the buyer’s default, this was clearly an appreciable injury. We conclude that Jones’s professional malpractice claim accrued on October 31, 2011.

The three-year statute of limitations for the malpractice claim therefore expired on October 31, 2014. Because Jones filed his complaint in December 2013, within the time allowed, it was clear error to find the action barred by the statute of limitations.

(Mike Frisch)

September 23, 2016 in Clients | Permalink | Comments (0)

Benefit Of The Doubt

The Illinois Review Board has recommended a 60-day suspension for litigation misconduct that mostly took place in the last century.

The events that led to this disciplinary matter are part of an epic and Byzantine saga of litigation in federal court, which is recounted in detail in the Hearing Board's report and will be summarized as briefly as possible here. Our focus is on the proceedings that resulted in the appeals that the Administrator alleges are frivolous.

Respondent was admitted to practice in Illinois in 1976, and worked for Jenner & Block and another firm before starting his own practice in 1987. In 1988, a Maryland attorney, Jeffrey Hines, began representing Illinois Company Grove Fresh Distributors, Inc. (Grove Fresh), which sold orange juice manufactured by contractors. In 1989, Mr. Hines filed a federal lawsuit in the U.S. District Court for the Northern District of Illinois against some of Grove Fresh's competitors, alleging that they sold adulterated and misbranded orange juice in violation of federal law. Mr. Hines hired Respondent as his local counsel, and eventually ended his representation of Grove Fresh, at which time Respondent took over as its sole counsel.

The first Grove Fresh lawsuit (Grove Fresh v. Everfresh Juice Co., No. 89 C 1113) was assigned to Judge Zagel, who, during the course of the proceedings, came to believe that Respondent had ignored court orders and disclosed confidential information to generate unfavorable publicity for defendants. Thus, in a second Grove Fresh case (Grove Fresh v. John Labatt Ltd., et al., No. 90 C 5009, hereinafter referred to as the Grove Fresh case or litigation), Judge Zagel ordered that the complaint and all subsequent proceedings shall be filed under seal, and, in May 1991, entered a stipulated protective order to protect confidential and proprietary information and to facilitate discovery.

In January 1993, Grove Fresh relieved Respondent of responsibility for the litigation and other counsel took over. In April 1993, the Grove Fresh case was dismissed with prejudice pursuant to a settlement. In June 1993, a group of journalists intervened in the Grove Fresh litigation and filed a motion to vacate the seal Judge Zagel had previously entered. Judge Zagel denied their motion, and they appealed to the Seventh Circuit. In their response brief, the Grove Fresh defendants accused Respondent of bringing false allegations against them in order to obtain a multi-million dollar settlement.

Respondent initiated additional proceedings before Judge Zagel because of defendants' accusation, and, in October 1993, filed a motion with the Seventh Circuit requesting a hearing on the allegations made by the Grove Fresh defendants in the journalists' appeal. The court struck the motion. Subsequently, the Grove Fresh defendants filed two petitions for contempt against Respondent, alleging that he had disclosed confidential and protected information in his Seventh Circuit motion for hearing and in a letter to counsel for the journalists.

The problem

During the course of decades-long federal litigation, Respondent was charged with violating a protective order in the early 1990s. That led to a contempt order in 1995 and monetary sanctions in 1997, which were upheld on appeal, followed by a second contempt order in 2000. Shortly before the court entered the second contempt order, Respondent filed a Rule 60(b) motion to vacate the first contempt order, which the court denied, and then filed an appeal, which the Seventh Circuit found frivolous. In a bankruptcy proceeding that resulted from the monetary sanction imposed in the first contempt proceeding, in 2009, Respondent appealed to the U.S. District Court from the bankruptcy court's decision to give collateral estoppel effect to the first contempt order; and in 2011, he appealed to the Seventh Circuit from the U.S. District Court's decision affirming the bankruptcy court's decision.

Based on Respondent's appeal from the denial of the Rule 60(b) motion and two bankruptcy appeals, the Administrator filed his complaint against Respondent.

Following a hearing, the Hearing Board found that Respondent filed a frivolous pleading and engaged in conduct prejudicial to the administration of justice in relation to the Rule 60(b) appeal, but not with respect to the bankruptcy appeals. It recommended that Respondent be suspended for 60 days and until he completes the ARDC's Professionalism seminar.

On review, Respondent challenged the Hearing Board's finding that he engaged in any misconduct at all, as well as some pre- and post-hearing rulings, and the Administrator challenged the Hearing Board's findings of no misconduct arising out of the bankruptcy appeals, as well as its sanction recommendation.

The Review Board affirmed the Hearing Board's finding of misconduct with respect to the Rule 60(b) appeal and its findings of no misconduct with respect to the bankruptcy appeals. It concurred with the Hearing Board's sanction recommendation and recommended that Respondent be suspended for 60 days and until he takes the ARDC's Professionalism seminar.

Sanction

we acknowledge, but reject, the Administrator's urging that Respondent be suspended until further order of court because of his unwillingness to conform his conduct to his professional obligations. As was the Hearing Board, we are disturbed by Respondent's conduct during his disciplinary proceeding, in which he continued to rehash the Grove Fresh litigation and made baseless accusations against the Administrator. We hope that, once this disciplinary matter is behind him, Respondent can conduct himself in accordance with his professional obligations as he did before the Grove Fresh litigation commenced. Accordingly, we will give him the benefit of the doubt and decline to suspend him until further order.

We believe, however, that he would benefit from taking the ARDC's Professionalism seminar, and therefore recommend that he be suspended for 60 days and until he completes the ARDC's Professionalism seminar.

This 1995 coverage from the Chicago Tribune. (Mike Frisch)

September 23, 2016 in Bar Discipline & Process | Permalink | Comments (0)

"Condemned And Pronounced Wrongful By Honest And Fairminded Men"

The Wisconsin Court of Appeals affirmed the grant of summary judgment against an attorney who sought compensation from John Menard and his business interests as well as with respect to counterclaims that the attorney had breached fiduciary obligations to her client.

Debra Sands appeals orders dismissing her claims against John Menard, Jr., Menard, Inc., and Menard Thoroughbreds, Inc., (“the Menard Defendants”) and against the trustees of the John R. Menard, Jr. 2002 Trust and related trusts (“the Trustees”). Sands claims she cohabitated with Menard from 1998 until 2006, and during that time she performed work for Menard and his companies that increased their value and for which she was not fully compensated. Sands further claims Menard repeatedly represented to her during their relationship that he would give her ownership interests in his companies as compensation for her services, but he has since failed to do so...

Menard is the founder of Menards, a highly successful, privately held chain of home improvement stores, and is president and chief executive officer (CEO) of Menard, Inc. In November 1997, nearly forty years after starting his business, Menard began dating Sands. Sands had graduated from William Mitchell Law College of Law in 1993 and was licensed to practice law in Minnesota.

The personal relationship did affect the attorney's ethical obligations

Here, Rule 1.8(a) sets forth a standard of conduct with which an attorney must comply when entering into a business transaction with his or her client. If, as Sands alleges, she entered into a business transaction with Menard by which she agreed to perform legal services for him in exchange for an interest in his businesses, Sands was required to comply with Rule 1.8(a). It is undisputed that Sands failed to comply with the rule. By doing so, Sands committed a willful act that would be “condemned and pronounced wrongful by honest and fairminded men.” See David Adler & Sons, 200 Wis. at 160. As such, Sands’ hands are unclean, and her violation of Rule 1.8(a) therefore bars her from recovering on her equitable claims.

As to claims against the attorney

We do not find the foreign cases cited by Menard, Inc., persuasive. Instead, we conclude the existence of a fiduciary relationship, rather than excusing a client entirely from its obligation to investigate, is merely one factor to be considered in determining whether the client exercised reasonable diligence to discover a claim against its attorney. Under the circumstances of this case, although a fiduciary relationship existed between Sands and Menard, Inc., other undisputed facts show that Menard, Inc., was a sophisticated corporate actor and that its president and CEO harbored suspicions about Sands’ conduct for approximately one year before the Fund transaction closed. Those facts gave rise to a duty to investigate, regardless of the fiduciary relationship between Sands and Menard, Inc...

Here, although Menard, Inc., may not have had full knowledge of Sands’ alleged misconduct on September 1, 2005, it certainly had enough information at that time to prompt a reasonable person—or, more to the point, a reasonable corporation—to inquire further. As a result, Menard, Inc.’s counterclaim against Sands for breach of fiduciary duty accrued on September 1, 2005. Because the counterclaim accrued before November 3, 2006, it is barred by the two-year statute of limitations...

The Milwaukee Journal Sentinel has a report.   (Mike Frisch)

September 23, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, September 22, 2016

Military Service Meets Oklahoma Reciprocity For Admission Requirements

The Oklahoma Supreme Court has held that a military attorney may waive into the Bar without examination.

The facts are agreed by the parties. The appellant, Major James M. Green (Major Green) grew up in Muskogee, Oklahoma, and graduated from high school there in 1991. He then served on active duty in the United States Marine Corps for nine years. After an honorable discharge, he obtained an undergraduate degree from Northeastern State University in Tahlequah, Oklahoma, and a law degree from Thomas M. Cool[e]y Law School in Lansing, Michigan. Major Green was admitted to the Florida Bar Association in May of 2007. Florida is not a reciprocal state with Oklahoma.

 In June of 2007, Major Green returned to the Marines as an attorney and on March 21, 2008, he was designated a Judge Advocate after having attended the Naval Justice School in Newport, Rhode Island. Since that time, he has served in a variety of roles. He is currently Regional Victims' Legal Counsel for the National Capitol Region, which includes the eastern United States and Europe.

Major Green has been stationed at the United States Marine Corps Base at Quantico, Virginia since approximately the beginning of 2001. Most of his work occurs at his office provided by the military at Quantico. In January of 2014, he became a member of the Virginia Bar after taking the Virginia bar examination. [Virginia has reciprocity with Oklahoma.] Seeking to retire from the military and return to Muskogee to practice law and be near his family, Major Green filed an application for admission on motion under Rule 2 of the Rules Governing Admission to the Practice of Law in the State of Oklahoma, 5 O.S. Supp. 2015 ch.1, app. 5.

On March 13, 2015, the Board denied his application because he had not engaged in the practice of law in a reciprocal state for five of seven years immediately preceding his application. There were no other aspects of his application which were disputed, ie. good moral character, due respect for the law, and fitness to practice law. Major Green then asked for a hearing under Rule 11, 5 O.S. Supp. 2015 ch.1, app. 5.  On September 4, 2015, Major Green appeared pro se before the Board for a hearing regarding his eligibility for admission under Rule 2 of the Rules Governing Admission, 5 O.S. Supp. 2015 ch.1, app. 5. On October 19, 2015, the Board denied his application. Apparently, a majority of the nine board members voted to deny Major Green's application but no vote was recorded.

The Board agreed that he had engaged in the practice of law for five of the last seven years, but determined that serving and practicing law in the military was not a "reciprocal state" under Rule 2. The Board commended Major Green for his service, but offered no sympathy and advised him to take the Oklahoma Bar Exam. The Board also admitted that our rules make it difficult for any military lawyer to ever qualify for reciprocity, but concluded that was no justification to grant admission.

The court held that the applicant's military service as an attorney met reciprocity requirements

Major Green has with his service, represented the United States of America. Whether it is called a jurisdiction or a country, it is a conglomerate of all the states. Some of the purposes of letting military spouses practice law where their spouse is deployed is to eliminate the need for an additional bar examination, relive a significant portion of stressors for family, expedite job search efforts, and allow them to contribute to their families. Major Green has passed the bar examination in two of those states. Surely, that is more than sufficient. Major Green stated at the hearing that:

... I think it's you [who] are prejudicing the military, those of us that go and fight for our country, and I have huge sacrifices I made being a military member, and to not be able to apply that service as my tour of duty comes to an end, I think that is unfair. I don't think that the drafters of the rules contemplated that. . . I think we would have a different case if it was some sort of some different law that we practiced in the military. . . .It is different from military justice, but it's - it's the same type of statutes, same types of crime, burglary, rape, robberies, larceny. It's the same stuff. It's just under a different code. . . . The rule is about being fair. About being fair to jurisdictions that are fair with Oklahoma. And it would be unfair to not provide reciprocity to service members. . .

We agree with Major Green. He has met the requirements for Rule 2 of the Rules Governing Admission to the Practice of Law in Oklahoma and should be admitted instanter.

"Commended Major Green for his service but offered no sympathy..." is a bit of a gentle slap. (Mike Frisch)

September 22, 2016 in Bar Discipline & Process | Permalink | Comments (0)

A Gamble Worth Taking: A Colorado Suspension For Misappropriation Gets A Reciprocal New Jersey Reprimand

The New Jersey Supreme Court approved the imposition of a reprimand for an instance of negligent misappropriation as reciprocal discipline for a Colorado suspension of a year and a day.

According to the Disciplinary Review Board report, the attorney had opened a $50,000 casino line of credit.

On August 5, 2008, respondent traveled to Grand Bahama Island and gambled at the Capri casino. While playing blackjack, he signed five marker transfer requests totaling $45,000. Under the terms of the credit agreement that he had signed with Capri, if those marker transfer requests were not paid within thirty days, the bank or banks listed in the credit application would be permitted to issue checks drawn on any of the four bank accounts to repay the markers. None of respondent’s five marker transfer requests specified a particular account from which Capri should request payment.

 Respondent failed to pay the $45,000 markers within the allotted thirty-day period following his gambling at the casino. Therefore, on September 15, 2008, the casino submitted five counter checks totaling $45,000, all written against AH Title’s business escrow account. Each check was dated August 5, 2008, the date that respondent had signed the markers at the blackjack table. The checks included the bank escrow account number and a scanned image of respondent’s signature, as though he had signed them on that date. The five checks cleared AH Title’s bank on September 16, 2008. As a result, $45,000 of third party escrow funds were invaded and used to satisfy respondent’s personal gambling debt to Capri.

 He had claimed inadvertence

respondent’s [Colorado] affidavit states that, on March 14, 2008, when he signed the Capri credit application, he was vacationing in the Bahamas. At the time, he maintained three personal checking accounts and four business operating accounts. Respondent owned all of the funds in all of those accounts.

His staff gave him the wrong account numbers, which led to the use of client funds.

Respondent’s staff person gave respondent the account number information over the telephone, information that respondent at all times believed related to a business operating account. Respondent was unaware "then and at all times subsequent," that his staff had inadvertently given him checking account information "for one of the escrow accounts, rather than the business checking account requested:"

I put the business account checking information on the credit application, unaware that it was actually one of four escrow accounts we used in the same businesses.

I was aware that the casino would withdraw funds from one of my accounts, which I requested that they do from either of the personal checking accounts.

The money owed was in fact withdrawn from the business account, which I at all times believed to be one of my business operating accounts.

Not until the withdrawal actually occurred did I realize monies were withdrawn from an escrow account.

Upon this becoming known to me, I immediately deposited the funds withdrawn from the escrow account with my own funds.

Whereas my deposit was immediate, no checks were presented on the account. 

Had I had any intentions to subject escrow accounts to this possibility, I would not have immediately deposited my own funds nor presumably even had the funds to deposit.

At no time in question, prior to the withdrawal above referenced, was I aware that credit application contained escrow account information. At no time did I intend to use escrow account information or escrow funds for my personal use or collateral.

As evidenced by my actions, it was always my intention to utilize my personal funds for any obligation arising out of the credit application.

The Board

Although respondent has no prior discipline in over thirty years at the bar and no one was harmed by his actions, respondent’s misconduct was serious and negligently exposed escrow funds to the invasion that ultimately occurred. For these reasons, we determine that respondent should receive a reprimand for his misconduct.

 At the very least. (Mike Frisch)

September 22, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Rage And Bar Discipline

A two-year suspension was imposed by the Pennsylvania supreme Court as a consequence of the attorney's conviction of assault in the second degree.

The "road rage" incident led to a four-year prison sentence with all but six months suspended.

The attorney had no prior discipline but did have a pre-admission record of criminal behavior that included a conviction for "atrocious assault and battery" and, in another incident, "had a physical fight with another person wherein he bit off a piece of the other person's ear."

He graduated from Rutgers Law after serving time for the ear and became a public defender. He lost the public defender job after failing to pay a $250 fine for contempt of court.

The orders may be found at this link.

The attorney's name is Cesar Alvarez-Moreno. (Mike Frisch)

September 22, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, September 21, 2016

Yes And No To Reciprocal Discipline

The North Dakota Supreme Court declined to impose reciprocal discipline, concluding that an attorney's non-practice related behavior did not prejudice the administration of justice.

The attorney is a man of the West

Haderlie was admitted to practice in North Dakota in 2012 and has been licensed since that time. He is also licensed in Colorado, Montana, Utah, and Wyoming. Haderlie was arrested on October 19, 2014, and later plead guilty to misdemeanor violations of Wyoming Statutes § 31-5-233, driving or having control of a vehicle while under the influence of intoxicating liquor or controlled substances and § 6-5-204(a), interference with a peace officer. The record reflects that on July 2, 2015, the Wyoming Supreme Court publicly censured Haderlie after he acknowledged his conduct violated Rule 8.4(b) and Rule 8.4(d) of the Wyoming Rules of Professional Conduct for Attorneys at Law.

Haderlie has no prior discipline in North Dakota, and no prior discipline in Colorado, Montana, or Utah before this matter. As a result of Haderlie's conduct, Haderlie stipulated to reciprocal discipline in Colorado and Utah. The matter was dismissed by the Montana Office of Disciplinary Counsel as a matter of law because the underlying convictions are not the type of conduct that normally give rise to discipline in Montana.

The court majority

Here, Haderlie's conduct was not connected to either the representation of a client nor a judicial proceeding. Rather, his arrest and conviction stemmed from off-the-job alcohol consumption and a confrontation with law enforcement that occurred at his home. Under these circumstances, Haderlie's criminal conduct does not fit the majority-view legal application and definition of "prejudicial to the administration of justice" so that professional discipline properly can be imposed

Chief Justice Vande Walle dissented

While it may be arguable that not all crimes are necessarily prejudicial to the administration of justice, I do not agree that only that conduct connected with judicial proceedings is encompassed by the rule. It seems imperious to conclude that only in the setting of a judicial proceeding can there be acts prejudicial to the administration of justice. Persons other than lawyers and judges are involved in the administration of justice, albeit in a different setting. Lawyers are required to take an oath of office prescribed by N.D.C.C. § 27-11-20 and § 4 of Article XI of the North Dakota Constitution to "faithfully discharge the duties of the office of attorney and counselor at law." Peace officers also are required to take the same oath to "faithfully discharge the duties" of their office. N.D.C.C. § 44-01-05. Haderlie was convicted in Wyoming for interfering with a peace officer who was fulfilling the duties of the office to uphold the Constitution of the United States and the Constitution of the State of Wyoming. The disciplinary authorities in Wyoming determined Haderlie was subject to discipline under statutes and rules similar to those in North Dakota. We should do the same. The sorry spectacle of a licensed lawyer interfering with a peace officer acting in the line of duty is not only damaging to the image and reputation of the legal profession, it is, I submit, conduct prejudicial to the administration of justice.

Nor do I agree, as Haderlie appears to argue, that because heretofore no North Dakota lawyer has been disciplined for similar conduct that fact somehow immunizes him from reciprocal discipline. To my knowledge the issue has not been before this Court prior to this time. I believe it is clearly prejudicial to the administration of justice for a lawyer to interfere with a peace officer acting in the line of duty and I would impose reciprocal discipline. But, if, as the majority concludes, our rules do not currently make this conduct subject to disciplinary action, they should be amended to do so.

(Mike Frisch)

September 21, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Better Never Than Late

On September 12, I reported that the case that promises to take longer to resolve than any matter in D.C. Bar disciplinary history was scheduled for oral argument before the Board on Professional Responsibility on September 22, 2016.

False alarm.

The oral argument must be postponed because the BPR cannot get a quorum together to hear the case.

Part of the problem - the case has kicked around for so long that not one but two of the Hearing Committee chairs in the proceedings is now on the BPR and must be recused.

Per my earlier post, maybe it's better that the case never be decided.

The endless saga of In re Quinne Harris-Lindsay will move forward with argument on September 22.

The case has bounced around for fourteen years. It is a potentially hugely significant case on both the law of misappropriation and the effect of systemic delay. I expect nothing good to come out of this train wreck.

My view when the hearing committee issued its report

Once again the D.C. system shows its system-wide dysfunction - a first-level report (subject to board review and Court final action) of an attorney fourteen years after the investigation  commenced.

Cases regularly take ten years to move from soup to nuts. This one has a shot at twenty.

A rather straightforward case involving a single probate matter where the facts were not in dispute - only the attorney's intent.

My prediction: This case may well lead to the overturning of the en banc holding of In re Addams that disbarment is required in virtually all cases of intentional or reckless misappropriation.  Disciplinary Counsel's delay may well play a role in the demise of that doctrine.

Another day, another delay. (Mike Frisch)

September 21, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Strike Three Months

A conviction arising from a "road rage" incident merited a three-month suspension imposed by the New Jersey Supreme Court.

From the Disciplinary Review Board report

On April 7, 2011, while on Washington Avenue in Jersey City, he was involved in a "road rage" incident. Angered by the actions of another driver, respondent exited his vehicle, retrieved a baseball bat from the trunk, and struck the driver’s vehicle multiple times. Respondent’s strikes to the vehicle broke the windshield and a side mirror and caused the driver and a passenger in the vehicle to be placed in imminent fear of bodily injury. Respondent did not admit striking either of the victims with his fist, attempting to strike either of the victims with the baseball bat, or causing actual injury to either of the victims, as had been alleged in the criminal complaints that had been filed against him. Neither the State nor the court required respondent to address these allegations during his plea allocution.

The DRB summarizes the history of bar discipline for violent New Jersey attorneys.

Here, it was a swing and a miss

Based on the vicious nature of respondent’s violent behavior -- an attack with a baseball bat on a car occupied by two victims, on a public street - we determine that a three-month suspension is the appropriate sanction to protect the public and to preserve confidence in the bar.

The DRB noted that the attorney paid restitution and was likely under the influence of alcohol.

The Jersey Journal reported that he was an attorney in the Hudson County Law Department and had been involved in a earlier altercation

In the August incident officers responding to a fight outside a Downtown bar after 1 a.m. were met by Collins, who told them they "had no idea who the (expletive) he was" and said he "knew people," according to the police reports on the incident.

Collins, who was "visibly highly intoxicated," pushed one officer in the chest twice and brushed away the arm of another officer attempting to keep him back, the reports said.

When two officers escorted Collins a short distance away, he began pounding on the glass window of the bar and was telling the officers to "lock him up," which they did, the reports said.

(Mike Frisch)

September 21, 2016 | Permalink | Comments (0)

Taxi Driver

The New Jersey Supreme Court imposed a three-month suspension of an attorney admitted in 2010 who was convicted of assault.

The Disciplinary Review Board report described the offense

On the night of the assault, Balde, a taxi driver, was hailed by respondent on the West Side Highway in New York City. He agreed to drive respondent to Jersey City for a $63 fare. Upon arriving in Jersey City, at approximately 10:30 p.m., respondent informed Balde that he had only $9 and asked Balde to drive him to his apartment so that he could obtain additional money. Balde refused to do so and locked the doors in the taxi to prevent respondent from exiting. Respondent, who is approximately 6’5" tall and 280 pounds, began to kick at a door and window of the vehicle.

Balde then unlocked the doors and respondent exited the taxi and began walking away, pursued by Balde. Respondent grabbed Balde’s face and then struck him in the face with a closed fist. After the police were called, they interviewed Balde, arrested respondent near the scene of the assault, and charged respondent with robbery. As a result of respondent’s assault, Balde sustained lacerations to his forehead and upper lip, his glasses were broken, he had blood on his shirt, and he reported pain in his nose and mouth. He received medical attention at Jersey City Medical Center.

On sanction

The case law examined above illustrates that disciplinary cases involving violent behavior by attorneys requires fact sensitive considerations. Simply put, there has been no typical or "baseline" measure of discipline for these cases and we decline to declare such an inflexible approach. In 1997, Viqqiano warned the bar that "any act of violence committed by an attorney will not be tolerated" and that "[n]othing less than a suspension" would likely be imposed for violent behavior. But for the mitigation addressed above, the violent behavior under scrutiny in this case -- the assault of a taxi driver who was seeking the fare for his services -- would result in the imposition of a three-month suspension to protect the public and to preserve confidence in the bar. For the reasons expressed above, however, we determine to impose only a censure in this case.

 

The attorney has no prior discipline. (Mike Frisch)

September 21, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, September 20, 2016

High Times In Ohio

Ethics guidance from Ohio

The Ohio Supreme Court today adopted an amendment to the Ohio Rules of Professional Conduct clarifying the ethical responsibilities of lawyers under the state’s new medical marijuana law. The amendment addresses counseling or assisting a client regarding conduct expressly permitted under the new law.

Specifically, the amendment modifies the provision in Prof. Cond. R. 1.2(d)(2) by adding a new subsection, which reads:

“A lawyer may counsel or assist a client regarding conduct expressly permitted under Sub.H.B. 523 of the 131st General Assembly authorizing the use of marijuana for medical purposes and any state statutes, rules, orders, or other provisions implementing the act. In these circumstances, the lawyer shall advise the client regarding related federal law.”

The need to clarify the services that attorneys can offer clients arose after an Aug. 11 non-binding advisory opinion issued by the independent Board of Professional Conduct. The Board’s advisory opinion acknowledged the state’s new law, but stated that prohibitions in federal law might create ethical problems for lawyers counseling or assisting a client with regard to the new law, depending upon the nature of the services their clients seek.

Chief Justice Maureen O’Connor said the Court placed the rule change on an accelerated calendar for consideration, given the uncertainty surrounding Ohio law and federal law. “Ohio attorneys seeking guidance needed to know the do’s and don’ts as quickly as possible,” she said.

The amendment to the rule takes effect on Sept. 20.

(Mike Frisch)

September 20, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Wayward Ex-Marine Must Pay Ancient Order Of Child Support

The Maine Supreme Judicial Court has held that laches is not an available defense to four decades of failing to pay child support

...compelling public policy considerations support our conclusion. Allowing the assertion of laches in child support arrearage cases has the inevitable dual consequence of financially rewarding a parent for shirking his or her obligation to the child and penalizing the child for a parent’s delay in seeking support. The child’s needs are the primary focus of an order awarding child support, not the diligence of the parent.

But as to spousal support

In contrast to child support arrearages, however, we conclude that the doctrine of laches is a viable defense in spousal support arrearage cases.

The parties married in 1970 , had two children, and separated in 1977. The husband never paid the agreed support and went into hiding from the Marine Corps in 1977. The divorce was granted in 1979.

The Marines landed in 1996 and awarded husband a bad conduct discharge.

In 2014, the son sought information about his birth father. Mother found Father after a Google search that took less than five minutes.

She sat on her rights to spousal support; the son was blameless. (Mike Frisch)

September 20, 2016 | Permalink | Comments (0)

Untimely Explanation Rejected

Default may be in our stars but it is unhelpful in dealing with a bar complaint, as evidenced by a recent Louisiana Hearing Committee report finding trust account violations and failure to respond

Prior to instituting the formal charges, the Respondent offered an explanation for her delay in responding to ODC’s formal complaint. She stated that she had no office staff and her office was not always open to receive certified mails that needed to be signed for. She said  she did attempt to retrieve the ODC mail from the post office after she got notice of the mail from the post office but it had already been returned to the ODC unclaimed. (ODC Exhibit 6). Regarding her delay in responding to the ODC’s request for supplemental information, she explained that it was because she had technical issues with her computer and thought she had responded to the supplemental request when in fact she had not. She said she had used her computer to promptly draft a response to the supplemental request but the computer crashed before she could back up the draft response and other documents. She lost these documents. She had to have the computer repaired. In the midst of this computer problem, she forgot she had not sent out the drafted response (now lost in the computer crash) to the ODC supplemental request. She apologized and denied any intention to not cooperate with the ODC’s investigation. (ODC Exhibit 11).

The foregoing explanation of the Respondent may be persuasive but it is of no avail because the formal charges alleging that she failed to cooperate with the ODC were undisputed and were deemed admitted and proven by a clear and convincing evidence. Therefore, the committee is bound to find that the Respondent violated Rule 8.1c – failure to cooperate with the ODC investigation.

The proposed sanction

All considered, the committee imposes one year suspension on the Respondent with all but one month deferred. In addition, the committee imposes a minimum of 2 credit hours mandatory class on managing Client Trust Account on the Respondent. Finally, the committee assesses all costs of these proceedings against the Respondent.

(Mike Frisch)

September 20, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Access To Student Records Case Remanded

The Montana Supreme Court has remanded an effort by author and journalist Jon Krakauer to obtain access to disciplinary records concerning campus sexual assault that were the subject of his book Missoula.

In the context of this particular case, as discussed above, the national and state legislatures have taken the affirmative action of enacting legislation establishing the privacy interests of students in their records, as a matter of law. This action sets this case apart from others involving general privacy interests, and courts must honor the unique privacy protection legislatively cloaked around the subject records by factoring that enhanced privacy interest into the balancing test...

Having concluded that the records in question in this case appear to fall under the “Personally Identifiable Information” protection granted by FERPA, and also having concluded that FERPA and state statute provide an exception for release of information pursuant to a lawfully issued court order, we remand this case to the District Court for an in camera review of the documents in question. After giving due consideration to the unique interests at issue in this case, as discussed herein, the District Court will re-conduct the constitutional balancing test and determine what, if any, documents may be released and what redactions may be appropriate. As noted above, the exception to FERPA that allows for release of documents pursuant to a court order requires advance notice to the affected student or parents, and a district court must comply with this directive before releasing protected information.

 Dissenting Justice McKinnon would reverse rather than remand

In the context of this particular case, we have left unanswered many of the questions raised by the parties which, in my opinion, were incorrectly resolved as a matter of law by the District Court. Our guidance to the District Court is essentially that, “[t]his enhanced privacy interest must be considered and factored into the constitutional balancing test on remand.” Opinion, ¶ 37. In an attempt to describe “this enhanced privacy interest,” we cite “phrasing” from another jurisdiction, “merely for illustrative purposes,” but are unwilling to a set forth a standard, rule, or appropriate analysis regarding a statutorily protected enhanced privacy interest. In my opinion, we have failed to address the parties’ arguments. If correct legal principles and analyses are applied by this Court while considering the specificity of Krakauer’s request, it is not necessary to remand these proceedings to the District Court for an in camera review and balancing of privacy interests and the right to know...

 In the context of Krakauer’s request for the specific student’s records, the student’s enhanced privacy interest would receive no protection. As the Court observes, “[o]bviously, records provided in response to a request naming a particular student will be about that student . . . .” Opinion, ¶ 38. Here, Krakauer requested a specific student’s records by name, because he wanted the specific student’s records. Had he been interested in the process by which the Commissioner handled complaints of sexual assault, his request would not have been specific as to the student. Krakauer’s request of the Commissioner was to “inspect or obtain copies of public records that concern the actions of the Office of the Commissioner of Higher Education in July and August 2012, regarding the ruling by the University Court of the University of Montana in which student [name redacted] was found guilty of rape and expelled from the University.”

 Thus

I would reverse the judgment of the District Court. I would conclusively decide the issue of attorney fees and costs in favor of the Commissioner. Remand for in camera review is not necessary given the manner in which the request for records was made and that, as a result, no protection can be accorded the student’s substantial and weight privacy interests.

(Mike Frisch)

September 20, 2016 | Permalink | Comments (0)

A Challenge To Disciplinary Systems Everywhere

I continue to be more than impressed by the transparency of the North Carolina State Bar.

The Office of Counsel generates both annual and quarterly reports on its work in disability, disciplinary, unauthorized practice of law and litigation involving the State Bar.

In many places (such as my own home turf) these responsibilities are widely distributed and administered separately.

 North Carolina persuades me of the wisdom of unification of these functions.

From the July 2016 quarterly report

GRIEVANCES

In 2010, 1317 grievance files were opened. In 2011, 1499 grievance files were opened. In 2012, 1239 grievance files were opened. In 2013, 1205 grievance files were opened. In 2014, 1222 grievance files were opened. In 2015, 1331 grievance files were opened. Since January 1, 790 grievance files have been opened.

ATTORNEY CLIENT ASSISTANCE PROGRAM

The ACAP staff responded to 3,078 phone calls from members of the public and contacted 710 lawyers in an effort to resolve concerns expressed by clients. Staff also responded to 422 emails and 494 letters from inmates.

There were 146 requests for fee dispute resolution filed during the quarter. One hundred-thirteen files were assigned to the two State Bar facilitators. The remaining 33 files were sent to district bar committees.

The report also contains highly-readable summaries of each matter that is informative without excessive legalese.

For example in the completed cases category

Jennifer N. Foster – 14 DHC 7

It was alleged that Foster, of Asheville, used expletives before a state court magistrate. The Court of Appeals reversed her contempt conviction. Hearing was delayed awaiting a ruling in Foster’s federal court lawsuit against the magistrate and others, which was dismissed in March. After the hearing on July 8, the DHC announced its decision to impose a two year suspension stayed on numerous conditions.

Why is North Carolina such a leader in this area?

Whatever drives it, it should be bottled and distributed nationally. (Mike Frisch)

September 20, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Monday, September 19, 2016

Experiential Learning Goes A Bridge Too Far

An attorney who had failed to properly supervise a law student admitted to limited practice has been reprimanded and placed on two-years probation by the Arizona Presiding Disciplinary Judge.

The Agreement details a factual basis to support the admissions to the charges and is briefly summarized. In Count One, Mr. Ariano hired Eric Raymon, a third year law student as a legal assistant. Mr. Raymon applied as a Rule 38 limited practice certification and was certified to limited practice on September 4, 2016. Overall, Mr. Ariano, as his supervising attorney, failed to independently verify the Rule 38 application and failed adequately supervise Mr. Raymon. Mr. Ariano failed to identify Mr. Raymon as a Rule 38 student in his firm’s fee agreements and failed to file a Notice of Rule 38 limited practice Notice of Appearance with the court. On August 19, 2014 Mr. Raymon attended a pre-trial conference and held himself out as an attorney. Mr. Ariano did not appear at the conference. The client ultimately terminated the representation and asked for a refund of unearned fees. Mr. Raymon then met with the client, refused to return any unused fees, and made false statements to the client about conducting witness interviews. Mr. Ariano was not informed of the meeting. Mr. Ariano believed that Mr. Raymon and the contract attorney announced to the court before any hearings/conferences that Mr. Raymon was a Rule 38 limited practice student.

In Count Two, Mr. Raymon met with a potential client and conducted an interview without a licensed attorney present. Mr. Ariano represented the client for the entire pendency of her matter but failed to adequately communicate with the client. Mr. Raymon was the designated point of contact for the client, however Mr. Ariano was unaware that Mr. Raymon provided legal advice to the client.

 The presiding judge approved consent discipline. (Mike Frisch)

September 19, 2016 in Bar Discipline & Process | Permalink | Comments (0)

No Fee Award For Litigation Funder

The Delaware Court of Chancery denied a request for a mammoth amount of legal fees by a litigation funder.

Preferred Spectrum Investments, LLC ("PSI") seeks to recover $20 million as an award of attorneys‘ fees and expenses from Preferred Communication Systems, Inc. (the"Company" or "PCSI"). PSI claims it is entitled to this amount because it provided the funding necessary for plaintiff Michael Judy to pursue three pieces of litigation that were filed separately and then consolidated into this action: (i) a summary proceeding to obtain books and records, (ii) a summary proceeding to compel the holding of an annual meeting, and (iii) a plenary action challenging the authority of the individual then runningthe Company and the validity of certain actions he took.

PSI claims that because Judy prevailed in the litigation, the Company was able to preserve its ownership of two blocks of wireless licenses that constituted the Company‘s primary assets. The Company subsequently sold one block of licenses for $60 million, and PSI values the other block of licenses at $40 million. PSI contends it should receive one third of the after-tax value of the aggregate $100 million benefit. PSI posits a tax rate of 40%, yielding an after-tax benefit of $60 million, and an award of $20 million.

As a fallback, PSI contends it should recover $4,059.99.12, representing expenses that PSI claims to have incurred. PSI contends it actually incurred $8,257,717.52 in expenses, but during a period when individuals affiliated with PSI also held positions with the Company, it made partial payment of the amounts due, leaving the amount PSI now seeks.

 The original $8,257,717.52 appears grossly inflated. Of the total amount, PSI claims to have expended $4,198,618.40 for lawyers and other law-related expenses, but PSI admits that not all of those fees and expenses were for Judy‘s litigation efforts in this action. A substantial portion of the fees went to fund lawyers for individuals who PSI encouraged to intervene and assert personal claims for equity or other securities from the Company. Another substantial portion of the fees were for lawyers who appeared in proceedings before the Federal Communications Commission (the "FCC"), where PSI took positions adverse to the interests of the Company.

Thanks for asking but no thanks

For multiple reasons, PSI‘s motion is denied. First, PSI lacks standing to seek a fee award. PSI was neither the plaintiff nor plaintiff‘s counsel. PSI gratuitously financed litigation nominally being conducted by Judy. As a volunteer financier, PSI cannot seek an equitable fee award.

Second, PSI cannot obtain a fee award because it financed Judy‘s litigation as part of an attempt to take over the Company. This court has held that parties cannot obtain an equitable fee award when they use litigation in support of a takeover.

Third, PSI cannot establish the necessary causal connection between its litigation financing and the value of the licenses. There are too many intervening steps for PSI to be able to claim responsibility for $100 million in value.

Finally, PSI cannot recover a quantum meruit award, and in any event cannot recover all of the expenses it has claimed. Under no circumstances can PSI recover the amounts it spent to hire lawyers for individuals to pursue personal claims against the company or for lawyers to appear before the FCC and take positions adverse to the Company. Nor can PSI recover the myriad of ordinary business expenses that it has included in its petition.

(Mike Frisch)

September 19, 2016 | Permalink | Comments (0)

Jury Reunion No Substitute For Expert Opinion

The Connecticut Supreme Court has affirmed the dismissal of a legal malpractice claim against a criminal defense attorney for lack of an expert opinion

In the present case, from the perspective of a lay juror, the causal link between the plaintiff’s allegations of negligence and the plaintiff’s criminal convictions is far from obvious. Specifically, even if the defendant’s omissions or conduct were shown to be negligent, it would be entirely unclear to a jury that those omissions or conduct, rather than the plaintiff’s commission of the charged crimes and the resulting evidence of her guilt, were the proximate cause of the plaintiff’s convictions. Stated otherwise, even if the defendant had done everything that the plaintiff now claims she should have done differently over the course of the plaintiff’s criminal trial, the state’s case might have been strong enough that the defendant still would have been convicted. Without any specialized knowledge of criminal law and procedure, specifically, the statutes proscribing the charged offenses and the rules governing the undertaking of a criminal trial, the jurors would be unable to determine, in light of the case the state presented, whether the alternative strategies suggested by the plaintiff had a viable chance of succeeding...

 Notably, many of the plaintiff’s allegations of negligence concern matters of pretrial preparation and trial strategy. It is true that ‘‘[l]egal malpractice may include an attorney’s failure to exercise ordinary care in preparing, managing, and presenting litigation. . . . But [d]ecisions of which witnesses to call, what testimony to obtain or when to cross-examine almost invariably are matters of judgment. . . . As such, the wisdom and consequences of these kinds of tactical choices made during litigation are generally matters beyond the ken of most jurors. And when the causal link is beyond the jury’s common understanding, expert testimony is necessary.’'

This was not the solution

As a final matter, we reject the plaintiff’s claim that the only way to prove causation in this malpractice action was to call as witnesses the jurors from her criminal trial, and elicit from them testimony regarding how they would have voted if the case had been defended differently.

Case dismissal affirmed. (Mike Frisch)

September 19, 2016 in Clients | Permalink | Comments (0)

Bar Business Took Precedence Over Bar Business: Lawyer Suspended

An attorney who engaged in misconduct in several matters was suspended for a year and a day by the Pennsylvania Supreme Court.

He had offered this explanation for his failures to appear and contempt to court

Respondent told the Court that he had just opened a bar in Old City and taken on more cases than he could manage.

And this

Respondent believes that there would be a thousand or more contempts filed every day in Philadelphia if contempts were issued for every attorney who wasn't there when the judge called his list. N.T. 325. He believes showing up late is somewhat routine. N.T. 325.

Respondent claims that out of 4,000 court appearances he has had less than five contempts.

The Disciplinary Board

A prevailing theme in the client matters and in Respondent's contempt of court is his disorganized approach to the practice of law. Respondent acknowledged this problem and referenced other events in his personal life, such as the opening of a bar, which he apparently prioritized above his clients' matters. Respondent produced no evidence to suggest that he has put in place any method to safeguard against similar conduct in the future in order to keep clients or the court adequately informed and to attend to and meet critical deadlines, discovery, hearings, motions and trials.

Importantly, Respondent has not acknowledged or recognized the impact of his actions on his clients or the court system. He displayed a sometime cynical and/or cavalier attitude toward his ethical duties. In the Price matter, he seemed to be more upset over the fact that the successor counsel was paid more money than Respondent had been paid, rather than showing concern tor his failure to communicate with his client or timely surrender the client's tile. In the Dumas-Brooks contempt matter where Respondent failed to appear or respond to the court, he stated that there was no harm because the court itself delayed sentencing and therefore his delay was not significant. He minimized his criminal contempt convictions, indicating that showing up late to court is routine tor lawyers and that out of 4,000 court appearances he has had less than five contempts. He appears to believe that being held in contempt of court is acceptable and simply the cost of conducting business.

The case is Michael Stosic and can be found at this link. (M1ke Frisch) 

September 19, 2016 in Bar Discipline & Process | Permalink | Comments (0)