Saturday, April 25, 2015

Suspension For Unauthorized Practice In Two States

A suspension of six months and a day was imposed by the Massachusetts Supreme Judicial Court of an attorney who listed himself as admitted in that jurisdiction while on administrative suspension

The respondent was admitted to the bar of the Commonwealth in 1974. He was administratively suspended by the Supreme Judicial Court in July 2005 for failure to register and pay his dues, and was never reinstated. From at least 2009 and at all relevant times thereafter, he resided in New Hampshire. At no time was he admitted to the practice of law in New Hampshire or in any other state. Following the respondent’s administrative suspension in July 2005, he did not seek reinstatement...

On or about January 4, 2010, the respondent began working at a law firm in New Hampshire. On its website, the firm listed the respondent as a licensed Massachusetts attorney. In May 2010, a couple, who resided the State of Washington, retained the firm to handle a loan modification related to their residential real estate. They signed a fee agreement with the firm agreeing to pay a flat fee for the representation. The fee agreement entered into by the clients described the scope of the representation as including negotiation of a loan modification on their real property, as well as advice on what legal steps they would need to take to settle, reduce or discharge their debts.

In May 2010, the respondent sent a letter to the clients about their mortgage modification. The letter described the respondent as “Attorney Peter Larkowich.” The respondent signed the letter using the title “Esq.” after his name. In June 2010, the respondent sent a letter to the lender indicating that the firm represented the borrowers and formally requested a mortgage modification. The respondent also signed this letter using the title “Esq.” after his name. A copy of this letter was sent to the clients. Twice in August 2010, the respondent sent emails to one of the clients updating her on the status of the mortgage modification. Both times, the respondent used the title “Esq.” in the email.

The attorney thus engaged in unauthorized practice in both New Hampshire and Massachusetts.

The sanction begins once the attorney has secured reinstatement from the administrative suspension. (Mike Frisch)

April 25, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Friday, April 24, 2015

Not A Big Winner

Not a legal profession case but a decision worth noting from the Iowa Supreme Court

This case requires us to apply ordinary contract principles to an extraordinary event. While playing a penny slot machine, a casino patron obtained a win of 185 credits, or $1.85, based on how the symbols had lined up. However, at the same time a message appeared on the screen stating, "Bonus Award - $41797550.16." The casino refused to pay the alleged bonus, claiming it was an error and not part of the game. The patron brought suit against the casino, asserting breach of contract, estoppel, and consumer fraud. The district court granted summary judgment to the casino. The patron appealed.

On appeal, we conclude the district court’s grant of summary judgment was proper. The rules of the game formed a contract between the patron and the casino, and the patron was not entitled to the bonus under those rules. Further, the patron failed to prove the necessary elements of either promissory or equitable estoppel. At no time did the casino represent to her that a bonus would be available if she played the game, nor did the casino promise to pay the $41 million after the notice was displayed. In any event, the patron did not detrimentally rely on any representation by the casino. Finally, the patron failed to present proof of an ascertainable loss sufficient to warrant recovery on her consumer fraud claim. We therefore affirm the district court’s ruling granting summary judgment to the casino on all three counts.

(Mike Frisch)

April 24, 2015 | Permalink | Comments (0) | TrackBack (0)

Due Diligence Exclusion Negates Malpractice Claim

No legal malpractice was established in a law firm's representation of an investor in a Ponzi scheme, according to an opinion of the New York Appellate Division for the First Judicial Department.

In this action for legal malpractice, defendants, attorney Martin J. Friedman and his firm, McLaughlin & Stern, LLP, represented plaintiff in connection with the acquisition of an interest in two companies. After plaintiff lost the money he invested because the companies turned out to be part of a Ponzi scheme, he commenced this action alleging that defendants failed to conduct due diligence with respect to the companies' finances.

Defendants established their entitlement to judgment as a matter of law by submitting proof that plaintiff, an experienced investor, understood that the retainer agreement excluded due diligence from the scope of representation. Namely, the evidence demonstrates that plaintiff declined his accountant's advice to conduct due diligence and that he advised defendants that none was needed because he trusted the companies' owner and had engaged in numerous business transactions with her. Plaintiff's statements that he did not want any due diligence conducted, set forth in affidavits by defendant Friedman and plaintiff's accountant, are admissible as party admissions.

Furthermore, plaintiff's damages are not attributable to defendants. To the extent plaintiff sustained any non-speculative losses, the motion court correctly concluded that those losses were caused by the fraud committed by the owner of the companies and plaintiff's own misjudgment of the business risks, not by defendants' alleged conduct.

The record belies plaintiff's contention that defendants received undisclosed third-party payments that constituted a conflict of interest (see former Code of Professional Responsibility DR 5—107[A][1] [22 NYCRR 1200.26[a][1]]). Plaintiff knew of and consented to the offer by the companies' owner to pay part of defendants' legal fees. Moreover, payments were made well after the acquisition closed, and plaintiff cites no evidence that the arrangement pre-dated the closing. (citations omitted)

(Mike Frisch)

April 24, 2015 | Permalink | Comments (0) | TrackBack (0)


A Louisiana Hearing Board has proposed a full-stayed one-year suspension with six months of unsupervised probation of an attorney who (while represented by counsel) violated immunity provisions by suing a bar complainant.

The complainant was his former son-in-law, who had made a series of personal attacks against him that "may have grossly impaired his judgment at the time the charged misconduct occurred."

The committee also found that the Respondent "was not well served by his attorney."

An experienced attorney can thoroughly research a statute and master it. He will know its legislative history, be familiar with the many court decisions involved in the litigation of that statute. Lawyers are trained to seek and find ambiguity in the law (gray areas). Ambiguity in the hands of a good lawyer can be used as a "sword" to protect the rights of citizens. This is not to say that [counsel] and [Respondent] are not good lawyers, quite the contrary. However, the Committee feels they may have been to close to the situation to assess it correctly.

Here, "creativity" crossed the line into the land of frivolousness. (Mike Frisch)

April 24, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, April 23, 2015

No Sense Of Irony

I have just returned from the oral argument before the District of Columbia Board on Professional Responsibility in a case on which I previously have blogged.

The case is In re Rohde and it is notable in that the hearing committee filed its "report" (due by rule 120 days after the record closes) over seven years after the hearing was held.

I believe that this is the most flagrant and inexcusable delay in D.C. Bar discipline history, allowing a convicted felon to practice law for all those years while the committee "deliberated."

The most amusing moment was when Assistant Bar Counsel Joe Bowman was asked by a BPR member why the hearing committee took so long.

He gave the proper answer - he had no idea.

My answer?

The delay was caused by the gross inefficiency of a system run by the Executive Office of the BPR and the hearing committees that are selected, trained and advised by that office.

The delay was caused by "responsible" officials entrusted with public duties who do not care a whit about efficiency or the public interest.

The BPR can find the answer to this important question by looking carefully in a mirror. (Mike Frisch)

April 23, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

More Law Of Facebook

An interesting decision on authentication of documents from social media from the Maryland Court of Appeals

We shall hold that, in order to authenticate evidence derived from a social networking website, the trial judge must determine that there is proof from which a reasonable juror could find that the evidence is what the proponent claims it to be. We shall hold in Sublet that the trial court did not err in excluding the admission of the four pages of the Facebook conversation. We shall hold in Harris that the trial court did not err in admitting the “direct messages” and “tweets” in evidence. We shall also hold in Monge-Martinez that the trial court did not err in admitting the Facebook messages authored by Monge-Martinez.

The court resolved three criminal cases in its decision.

There is a concurring and dissenting opinion.

 Use of social media as evidence in civil and criminal trials is likely to become increasingly important. Today we advanced our jurisprudence by adopting the “reasonable juror” standard and holding that circumstantial evidence can be sufficient to authenticate social media evidence. But the Majority set bad precedent in holding that a trial judge can establish such a high bar for authentication as the court did in the Sublet case. The Majority muddled our “reasonable juror” standard by refusing to accept Facebook posts as authenticated, based on an undisputed admission by the witness that she made posts referring to the fight at the party in a Facebook conversation with friends the day after the party, but denying the posts on the same topic occurring shortly thereafter. We would enunciate a clearer standard and advance the law more profitably if we affirmed the trial court rulings in Harris and Monge-Martinez, but reversed the trial court in Sublet.

(Mike Frisch)

April 23, 2015 in Law & Society | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 22, 2015

Stalker Attorney Permanently Disbarred

Permanent disbarment has been imposed by the Indiana Supreme Court of an attorney who, among other things, "maintained a tempestuous long-distance relationship" with his daughter's college roommate.

The story is a frightening tale of abuse and harassment after the roommate JR ended it.

During the course of the four-month affair and thereafter, the married attorney sent "at least" 7,199 emails to JR. The "vast majority" of these communications "were threatening, abusive, and highly manipulative in nature."

He borrowed about $8,000 from her and conditioned repayment on her meeting with him. He threatened to commit suicide.


Even more perniciously, Respondent threatened to publicly disseminate explicit photographs of JD taken during their relationship, and to contact JD’s family, friends, acquaintances, and other third parties regarding Respondent’s accusations that JD was a "whore" or a "slut" and that she suffered from mental illness and psychosis.

 He then "repeatedly carried out...threats, both through emails to others and through postings on various adult-oriented websites." He also maintained a blog that identified JD by name and with photographs.

After JD started law school, he confronted her in the law school library and demanded that she have coffee with him.

Eventually the harassment led to the intervention of the associate dean for students at Indiana University Maurer School of Law. The attorney contended in response that JR was voluntarily engaging with him and told the dean she had "a lengthy history of mental illness, physical abuse, self-mutilation, and substance abuse."

JR obtained an order of protection but he not only continued the contact, he sued her in state court for malicious prosecution and abuse of process. He later filed a federal court action against JR and others alleging false arrest.

Before the Indiana high court, the attorney claimed that his interest in JR was "mutual, consensual, and not unwelcome."  

The court

Respondent also contends that his actions do not amount to stalking or harassment because there is no evidence showing that (1) JD actually experienced emotional distress due to Respondent’s conduct, (2) a reasonable person in JD’s position would be distressed by Respondent’s conduct, and (3) Respondent possessed the requisite intent. Again though, the hearing officer found to the contrary, the evidence amply supports her findings, and accordingly we decline to disturb them.

Finally, Respondent’s contention that he did not intimidate JD is similarly unavailing. His argument that he did not act with the intent to induce JD to do anything against her will invites a reweighing of evidence, which we decline. Nor do we find Respondent’s attempted invocation of truth as a defense to be persuasive here. Respondent’s statements to others about JD’s character and alleged mental illness, substance abuse, and physical abuse find no evidentiary support beyond Respondent’s self-serving testimony, which was discredited by the hearing officer. Further, statements that when viewed in context amount to "true threats" to someone’s safety – such as the thinly-veiled threats of violence contained in Respondent’s December 2008 email to JD, by which time Respondent had left dozens of profane and abusive voicemails, sent many more similar emails, twice appeared unannounced at JD’s residence, peeped into her bedroom window, confronted her in the law library, and blocked her entry into her car, among many other things – enjoy no protection...

Put simply, Respondent engaged in - and continues to engage in - a scorched earth campaign of revenge in the wake of being dumped by JD seven years ago, in March 2008....

Most disturbingly, despite the entreaties of JD and several others, Respondent simply has refused to take "no" for an answer.


 Respondent’s repugnant pattern of behavior and utter lack of remorse with respect to the events involving JD, his deceitful responses and lack of candor toward the Commission, his neglect involving DS’s appeal, his inability or unwillingness to appreciate the wrongfulness of his misconduct, and his propensity throughout to shift blame to others and see himself as the victim, all lead us unhesitatingly to conclude that disbarment is warranted and that Respondent’s privilege to practice law should permanently be revoked.

He already was suspended for CLE non-compliance. (Mike Frisch)

April 22, 2015 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Tuesday, April 21, 2015

The Whole Foods Truth

Ethics charges from the Illinois Administrator

 In the early afternoon of  February 22, 2013, Respondent was present at the Whole Foods supermarket in  River Forest, Illinois. She placed approximately seventeen articles of  merchandise, including food items and cosmetics, into her pockets and purse. The  items had a value of approximately $176.98. Thereafter, she walked past the cash  registers and attempted to leave the store without paying for the items. Loss  prevention agents detained Respondent outside the store. Respondent admitted to  taking the items, stating, "I don’t know why I did it." The loss prevention  agents contacted the River Forest Police Department, and an officer responded to  the scene.

The attorney is also charged with failure to cooperate with the bar investigation. (Mike Frisch)

April 21, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Reciprocal Discipline For Possession Of 7.25 Pounds

A conditional admission and sanction from the Colorado Presiding Disciplinary Judge

The Presiding Disciplinary Judge approved the parties’ conditional admission of misconduct and suspended Richard C. Folk (Attorney Registration Number 44055) for two years, all but ninety days stayed pending the successful completion of a two-year period of probation. The suspension took effect April 10, 2015.

On November 13, 2014, the Illinois Supreme Court suspended Folk from the practice of law in Illinois for two years and until further order of that court. The suspension in Illinois was stayed after ninety days by a two-year period of probation, with conditions. Folk purchased 7.25 pounds of marijuana in California. On his return trip to Illinois, he was stopped by a police officer in Nevada. Folk was arrested after falsely denying that he had any controlled substances in his car. He was later found guilty of the misdemeanor offense of possession of marijuana. Through these actions, Folk committed a criminal act that reflects adversely on his honesty, trustworthiness, or fitness as a lawyer in other respects and engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation.

Folk’s misconduct constitutes grounds for reciprocal discipline pursuant to C.R.C.P. 251.5 and 251.21, which calls for imposition of the same discipline as that imposed in Illinois.

(Mike Frisch) 

April 21, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

A Question Of Law

When a disciplinary hearing committee wonders whether a case should have been brought at all, it likely is not a good omen for disciplinary counsel.

A Louisiana Hearing Committee wondered just that and rejected charges that a suspended lawyer who filed a pleading on behalf of her own LLC engaged in unauthorized practice of law.

The pleading was in answer to a partition suit and avoided a default from being entered.

This also caused the committee concern

The Committee also notes that someone involved with the disciplinary complaint must have advised the St. Tammany Parish Sheriffs Office that Respondent would be in the courthouse for the disciplinary hearing and that the Respondent also had an outstanding warrant for an unrelated matter. The Respondent was arrested following the hearing but the Committee would note that such a tactic brought by whomever, could have resulted in a substantial waste of time not only for the lawyer members of the Committee but for the public member of the Committee who had to drive all the way from Amite, Louisiana had the Sheriffs Office not agreed to allow the hearing to go forward before the arrest was made.

The committee recognized that the Supreme Court might rule to the contrary on the question of law and proposes a reprimand if the court finds the violation. (Mike Frisch)

April 21, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Gone To Court

The North Carolina State Bar has filed a two-count complaint based on allegations made by two of the attorney's former clients.

One count involves a client who had retained the attorney and expressed concern about the progress of the matter. In response, the attorney told them to pick up their file.

The complaint alleges that the attorney's office was locked when they arrived.

He had taped the client file to his office door with a note reading "gone to court." The file contained original will and vehicle title documents.

The count alleges violation of the duty of confidentiality and improper withdrawal. (Mike Frisch)

April 21, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Let's Go To The Videotape

In a 5-3 decision, the Ohio Supreme Court has held that an order compelling discovery despite a claim of work product protection is not an appealable final order.

At issue is production of a surveillance tape of a plaintiff that medical malpractice defendants wish to use for impeachment.

Plaintiff-appellee, Henry Smith, sued defendants-appellants, Dr. Ying Chen, D.O., and his employer, OrthoNeuro, alleging that he suffers from spinal injuries resulting from their medical malpractice. During pretrial discovery, Smith became aware that defendants had created a surveillance video of him. Defendants refused to turn the video over to Smith, insisting that it was attorney work product that they intended to use only as impeachment evidence and it therefore was not discoverable. Smith requested the videotape, and after a series of discovery motions, the Franklin County Court of Common Pleas ordered defendants to produce it.

Justice Kennedy would decide the case on its merits.

Shades of The Fortune Cookie? (Mike Frisch)

April 21, 2015 | Permalink | Comments (0) | TrackBack (0)

Time Enough

When state bars revise their web pages, the result often is greater transparency in bar disciplinary matters.

Tennessee revised its Board on Professional Responsibility web page a few months ago.

One byproduct of that change was (at least for a Luddite such as myself) was to make it harder, not easier, to locate recent reports.

I have tried to navigate my way to this information and the best I can do is a quarterly report that includes case summaries.

One caught my eye

On September 2, 2012, the Board of Professional Responsibility filed a Petition for Discipline against Mr. Sams. Mr. Sams submitted inflated, false and deceptive fee claims to the Administrative Office of the Courts. From January, 2009 until December 31, 2010, there are approximately 478 days on which Mr. Sams billed more than eight hours to the AOC. For the majority of those days, Mr. Sams billed ten to eleven hours per day. Mr. Sams was unable to produce any documents to verify any billing entry. Mr. Sams billed nearly twelve hours on a day when he attended an eight hour, out of state CLE. Mr. Sams billed the AOC when other lawyers covered for him in court, a practice prohibited by Tenn. Sup. Ct. R. 13. On January 16, 2014, the Board of Professional Responsibility filed a Supplemental Petition for Discipline against Mr. Sams alleging that he knowingly understated his income in his personal bankruptcy. A Hearing Panel determined that disbarment was the appropriate sanction. Mr. Sams did not respond to the supplemental petition and he did not appear for the final hearing.

Guess the attorney could not find the time to show up. (Mike Frisch)

April 21, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Monday, April 20, 2015

Those Who Judge Can't Teach

The Florida Judicial Ethics Advisory Committee opines negatively on a judge's proposal to teach at his former law firm

May a judge give  an educational presentation to the summer law clerks of the judge’s former law  firm?



In  Florida Judicial Ethics Advisory Opinion 2003-03, the Committee opined that  judges could not participate in a law firm's litigation program by presiding  over mock trials at a law firm’s training retreat to be held at a local resort.  The judges were invited to preside over a one-day mock trial and critique and  give instruction to the firm's associates in an effort to improve their trial  techniques. The law firm offered to pay for the room and meals of the judges  who participated in the retreat. Unlike the judges in Florida Judicial Ethics  Advisory Opinion 2003-03 who would receive room and meals at a resort for their  participation in a law firm's educational program, the Inquiring Judge would  not receive compensation directly or indirectly for making a presentation to  the law firm's law clerks. However, the reasoning in Florida Judicial Ethics  Advisory Opinion 2003-03 nevertheless applies.

Canon 4 of the Code of Judicial  Conduct encourages judges to engage in activities to improve the law, the legal  system, and the administration of justice. Canon 4B specifies that judges are  encouraged “to speak, write, lecture, teach and participate in other quasi-judicial  activities concerning the law, the legal system, the administration of justice,  and the role of the judiciary as an independent branch within our system of  government.”

The  Commentary to Canon 4B suggests that because judges are learned in the law,  they are in a unique position to contribute to educational endeavors. Consequently,  there are numerous Florida Judicial Ethics Advisory Committee opinions that  have permitted judges to engage in law related teaching activities. See Fla. JEAC Ops. 75-28 (justice may teach at a law school); 81-3 (judge may teach  business law at a university); 87-3 (judge may participate in a legal seminar  sponsored by a private law firm in conjunction with the Academy of Florida  Trial Lawyers and University of West Florida); 92-29 (judge may sponsor and organize seminars for attorneys); 08-21 (judge may teach an educational/trial skills course at a Dependency Court  Improvement Summit sponsored by the Department of Children and Families); 10-27 (judge may present a seminar for attorneys on suggestions and anecdotes about  how to present a case to a judge that would be posted on the judge’s circuit’s  website). However, no Florida Judicial Ethics Advisory Committee opinion has  approved of a judge giving a private educational presentation to one law firm.

Canon  2 of the Code of Judicial Conduct is titled “A Judge Shall Avoid Impropriety  and the Appearance of Impropriety in all of the Judge’s Activities.” Canon 2A requires a judge to “act at all  times in a manner that promotes public confidence in the integrity and  impartiality of the judiciary.” Canon 2B  prohibits a judge from lending “the prestige of judicial office to advance the  private interests of the judge or others” or permitting others “to convey the  impression that they are in a special position to influence the judge.” Canon  4A(1) provides that a judge shall conduct all of the judge's quasi-judicial  activities so that they do not “cast reasonable doubt on the judge's capacity  to act impartially as a judge.”

Giving  practice “tips” at just one law firm violates the prohibitions set forth in  these judicial canons. Certainly, other law firms and lawyers not associated  with the firm where a judge is giving the presentation, as well as the public  might legitimately believe that the judge has a special relationship with that  particular law firm. Therefore, a reasonable person may question the judge’s  impartiality as it relates to that law firm.

In  addition, the presentation requested will be to the judge’s former law firm. A  judge should take steps to avoid conduct that requires disqualification in  matters that would come before the judge. It is customary for a judge to wait  one or two years after becoming a judge before presiding over the judge’s  former law firm’s cases. This customary wait period assumes that the judge has  no financial ties to the law firm at the end of the wait period and the matter  before the judge is not a case that the judge’s former law firm undertook  representation while the judge was a member of the firm. See Fla. Code Jud. Conduct, Canon 3E(1)(b); Fla. JEAC Ops. 93-19 and 04-06. Giving an educational presentation to the summer law clerks of the  judge’s former law firm gives the appearance that the Inquiring Judge is  maintaining close ties with that firm, which in turn may result in motions to  disqualify the judge.

The  Inquiring Judge has indicated that the Judge would make the same educational  opportunities open to any law firm that requested such a presentation. This is  a laudable but unrealistic position. Canon 3A states that “[t]he judicial  duties of a judge take precedence over all the judge’s other activities.” Canon 3B(8) states that a “judge shall  dispose of all judicial matters promptly, efficiently, and fairly.” The  Commentary to Canon 3B(8) states that the “[p]rompt disposition of the court’s  business requires a judge to devote adequate time to judicial duties” and to be  “expeditious in determining matters under submission. . . .”

Canon  4A(4) requires a judge to “conduct all  of the judge’s quasi-judicial activities so that they do not...interfere with  the proper performance of judicial duties.” Once the Inquiring Judge makes a  presentation to one law firm’s summer clerks, then the Judge has burdened the  Judge’s schedule with the commitment to make similar presentations to an untold  number of other law firms. This obligation certainly could affect the judge’s  ability to comply with Canons 3A, 3B(8) and 4A(4).

For  the reasons set forth herein, the Committee, with one dissent, opines that the  Inquiring Judge should not make a private educational presentation to the  Judge’s former law firm or to any other one law firm.

(Mike Frisch)

April 20, 2015 in Judicial Ethics and the Courts | Permalink | Comments (1) | TrackBack (0)

Call for papers and nominations for Fred Zacharias prize, 2015

Thanks to Sam Levine at Touro Law for letting us know:

Submissions and nominations of articles are being accepted for the sixth annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility.  To honor Fred's memory, the committee will select from among articles in the field of Professional Responsibility with a publication date of 2015.  The prize will be awarded at the 2016 AALS Annual Meeting in New York City.  Please send submissions and nominations to Professor Samuel Levine at Touro Law Center:  The deadline for submissions and nominations is September 1, 2015.

A worthy project, honoring a good man. (Alan Childress)

April 20, 2015 in Conferences & Symposia, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Flying High In West Virginia

ABC has this story raising allegations against a justice of the West Virginia Supreme Court of Appeals

 A West Virginia businessman has filed a formal complaint against state Supreme Court Justice Robin Jean Davis with the state’s Judicial Investigation Commission, alleging she had a conflict of interest with a lawyer who bought a jet from her husband as he prepared to argue a $90 million case before her.

“The fact is, an attorney appearing before Justice Davis with a $90 million judgment in hand paid some $1.3 million to the Segal-Davis family, clearly creating a perception that the Justice’s ability to hear the case with complete impartiality could have been impaired,” wrote Bill Maloney, a Republican coal industry veteran from Morgantown who ran unsuccessfully for governor and now runs a conservative think tank.

The complaint is the latest challenge to Davis, the state court’s senior justice, following an ABC News investigation that discovered a lawyer appearing before her had purchased a Learjet from Alpine Air, the holding company solely owned by Davis’s husband, Scott Segal. The airplane sale took place just weeks after the Mississippi lawyer, Michael J. Fuller, had won a $90 million judgment for a client who was suing a nursing home for helping cause the death of his elderly mother. Davis found for Fuller’s client in the appeal and wrote the majority opinion in the decision that cut the award by $40 million but enabled Fuller to collect a $17 million fee. Maloney is not involved in the nursing home case, but in a statement indicated he filed the new complaint because he’s interested in protecting the reputation of the state’s judicial system so as to not scare off economic investments for the state.

Earlier ABC coverage is linked here. (Mike Frisch)

April 20, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

The Balance

The Georgia Supreme court has accepted an attorney's agreement to an interim suspension pending resolution of criminal charges

The State Bar responds that while there is no specific rule that contemplates a suspension in this context, Smith’s request strikes a reasonable balance between the need for public protection and Smith’s right to defend against the criminal charges, see In the Matter of Swank, 288 Ga. 479 (704 SE2d 807) (2011), so it has no objection to the Court’s granting his petition.

Having reviewed the record, the Court agrees that Smith’s request should be granted. Therefore, it is hereby ordered that Wilson R. Smith be suspended from the practice of law in this State during the pendency of the criminal charges against him and until further order of this Court.

KFVS 12 reported on the charges.

A Vidalia attorney has been arrested and placed in the Toombs County Detention Center following an investigation on Wednesday, according to Sheriff Alvie Kight. 
Wilson Smith was charged with theft by conversion and forgery in the first and third degrees.
Sheriff Kight said the counts involve clients, and more clients are being interviewed. More charges could be filed against Smith.
"The allegations are that settlement documents were signed without the consent of the parties, and that the money from the settlement was basically taken by the defendant," Chief Assistant DA Trip Fitzner said. 
When prosecutors served him with a search warrant for his law office, Smith agreed to help. A deputy and a prosecutor escorted him to the office, after another attorney was appointed to protect the privacy of clients' records that are not connected to the case.
Fitzner said the investigation is ongoing, and more cases and victims could be added.

April 20, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Sunday, April 19, 2015

"In Aid Of Unrequited Love Or Misplaced Desire"

The Delaware Court of Chancery has held that a man had capacity to lavish gifts on a much younger woman.

Since the time of King David and Abishag—and, surely, before—certain old men have pursued an interest in certain young women.  Sometimes, as in that case, the relationship is one of a powerful man and an exploited woman.  Sometimes, it represents, no doubt, a May-December mutual romance, or at least a mercenary exchange of value for value. In other cases, however, it involves exploitation of an elderly and vulnerable benefactor. This case involves a relationship that quickly arose between a moderately well-to-do recent widower in his mid-eighties and a diner waitress of an age to be his granddaughter. The Petitioners—the old man’s heirs, trust and estate—allege the relationship is of the third variety described above; the Respondent contends it belongs in the second category.

During a fourteen-month relationship, George Reed, Jr. (“George Jr.”) lavished gifts on the Respondent, Lisa Grandelli, ranging from a few hundred dollars to a pickup truck costing over $30,000. He also paid cash—nearly a quarter-million dollars—for a condominium in Rehoboth Beach, titled jointly with Lisa with right of survivorship. The Petitioners, George Jr.’s estate, his trust and the beneficiaries of his will, seek, principally through imposition of equitable remedies, to recoup the value of these gifts.

Individuals are presumed competent unless proven otherwise, and are free to deploy their assets, wisely or foolishly, as they see fit. Equity may act in appropriate cases to remedy breaches of fiduciary duty or oppression, or to carry out the true intent of parties. If, however, equity were empowered to remedy every improvident expenditure in aid of unrequited love or misplaced desire, Delaware would need a Chancery Courthouse on every corner.

Lisa must account for the condo and pay back the estate for a Key West jaunt that was financed under false pretenses (her testimony on that issue was "a concatenation of self-serving lies").

The concluding lament

George Jr.’s heirs are upset that in the last months of his life, their father lavished expensive gifts on a much younger woman. Their position is natural; frankly, this is a case that was neither a pleasure to hear or write on. As a competent individual, however, George Jr.’s choices were his to make. Lisa, on the other hand, has treated as her own a condominium unit owned in common with George, Jr.’s Trust, for which she must account. In addition, loans made to her by George Jr. must be repaid, together with amounts to pay for the Key West trip, which she received based on false representations. The parties should submit an appropriate form of order. Each party must bear its own fees and costs.

(Mike Frisch)

April 19, 2015 in Law & Society | Permalink | Comments (0) | TrackBack (0)

Friday, April 17, 2015

Briefly Censured

The Wyoming Supreme Court has ordered a public censure of an attorney for misrepresentations in an appellate brief

The Formal Charge arising from Mr. Custis’s representation of Gilbert Ortiz, Jr. stemmed from a brief filed by Mr. Custis in the Wyoming Supreme Court appealing Mr. Ortiz’s convictions on three counts of second-degree sexual abuse of a minor. Ortiz v. State, 2014 WY 60, 326 P.3d 883 (Wyo. 2014). In his brief, Mr. Custis argued that the forensic interviewer, Lynn Huylar, had improperly vouched for the victim’s credibility. The brief included an extensive discussion, with quotes, of Ms. Huylar’s testimony. However, the testimony referred to was not Ms. Huylar’s testimony in the Ortiz case; rather, it was her testimony in a similar case, Seward v. State, 2003 WY 116, 76 P.3d 805 (Wyo. 2003), in which this Court held that she improperly vouched for the victim’s credibility. No citation informed the reader that the testimony discussed had been given in Seward and not Ortiz.

The court rejected due process claims based on the entry of default (citing a couple of D.C. cases I handled) and alleged prosecutorial vindictiveness.

There is no "magic formula" to attorney sanctions.

Although attorney discipline can serve to improve the performance of attorneys who have strayed in performing their ethical obligations, when an attorney continues to engage in professional and ethical misconduct in spite of previous sanctions, our concern weighs more heavily toward deterrence, maintaining the integrity of the legal system, and protecting the public. This Court’s decision in Custis I was published on November 7, 2012. Even assuming he made no changes in his office procedures until that date, some of Mr. Custis’s misconduct occurred after, he contends, he made improvements to his procedures to avoid any further discipline.

(Mike Frisch)


April 17, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Client Conduct Negates Malpractice Claim

The Nebraska Supreme Court overturned the grant of a new trial to the plaintiff in a legal malpractice case and reinstated the verdict in favor of the defendant law firm.

Thomas Balames, filed this legal malpractice action against Robert Ginn and Brashear LLP, formerly known as Brashear and Ginn (collectively Ginn), the firm where Ginn practiced when the alleged malpractice occurred. Balames brings this action for himself and three other individuals for whom he serves as attorney in fact (collectively Balames). Balames claimed that Ginn negligently failed to obtain signatures on a guaranty for a loan that Balames made to a third party and failed to inform Balames of the missing signatures. When the third party defaulted, Balames could not obtain a judgment against the individuals who were the intended guarantors for the full amount of the third party’s obligation. The jury returned a general verdict for Ginn, but the court granted Balames a new trial.

The client sought to complete the transaction while the attorney was on vacation. The client had not previously advised the attorney that the situation was urgent and terminated his services shortly thereafter.

The court

[Client] Balames admitted to being pressured by his bank to complete the transaction, and he insisted upon getting the documents to the bank as soon as humanly possible. [Attorney] Ginn’s evidence supported a reasonable inference that because Balames and his business associates had personally guaranteed the loan, they had an immediate need to show the bank that they had renegotiated the debt with Banopu. The crucial point here is that a client has the ultimate authority to determine the objective of a legal representation. Of course, an attorney should make reasonable efforts to explain the legal consequences of a course of conduct that a client insists upon taking. Yet, evidence regarding Ginn’s advisement raised a question of fact whether Ginn had breached a duty of care. That is, if the jury determined that Balames insisted upon closing without Ginn’s review, whether Ginn’s advisements were sufficient to inform Balames of the potential consequences was a question of fact.

The jury verdict sufficiently dealt with the issues

When the jury returns a general verdict for one party, a court presumes that the jury found for the successful party on all issues raised by that party and presented to the jury, particularly when the opposing party did not ask the court to give the jury a special verdict form or require the jury to make special findings. This is true both for Ginn’s failure-of-proof defense and his statute of limitations defense which barred Balames’ recovery even if he proved his malpractice claim. Because the court erred in concluding that plain error permeated the trial, this presumption controlled...

 If the jury believed Ginn’s version of the facts, then Ginn did not breach a duty to ensure that the documents were signed before or after the closing. Instead, Balames’ injury was caused by his failure to follow Ginn’s advice, his failure to review the documents for the required signatures, and his misrepresentation to Ginn that the documents were signed.

 (Mike Frisch) 


April 17, 2015 in Clients, Law & Business, Law Firms | Permalink | Comments (0) | TrackBack (0)