Thursday, December 12, 2013
The New York Appellate Division for the First Judicial Department has suspended an attorney on an interim basis as a result of these charges:
The relief sought is based upon respondent having engaged in multiple acts of sexual misconduct in Maryland between 1999 and 2010, some of which resulted in convictions; his admissions under oath that he was not truthful in a prior deposition before the Committee and in his law school and New York State Bar applications; and his impersonating another attorney and engaging in the unauthorized practice of law in courts where he is not admitted. Respondent has not opposed the motion.
The suspension is effective through the conclusion of the disciplinary proceedings.
The Baltimore Sun reported on charges against the attorney
Police are accusing a 29-year-old Baltimore man with ejaculating on a woman in the Montgomery College Library on Oct. 9 and then exposing himself to her.
According to news reports, a man ejaculated on a woman's arm while she was reading in the library. When she turned around, the man then exposed himself to her and then fled the library, police said. He returned shortly and then left again, and police were able to identify him from the woman's description and video surveillance footage.
"[A] seasoned trial attorney who practiced law for almost 25 without discipline before his legal services crossed the ethical line at his peril" has received a proposed suspension of two years, with a year stayed on two years of probation, by the California State Bar Court.
After a default judgment against the client, the attorney recorded two deeds of trust against client property that caused the court of appeals to observe that "This case presents the paradigm illustration of a fraudulent conveyance."
The court here found that the conduct involved moral turpitude. (Mike Frisch)
An attorney who engaged in extensive misconduct in four client matters was suspended for six months by the Wisconsin Supreme Court.
The court considered mitigating and aggravating factors:
Although there are both mitigating and aggravating factors to consider in weighing the seriousness of Attorney Smith's misconduct, the balance does not tip in Attorney Smith's favor. Weighing in Attorney Smith's favor are the facts that she did not operate with a malicious intent, she did not benefit personally from her misconduct, and, according to the referee, she experienced medical problems during the period in question that can explain some portion of her misconduct. Also weighing in Attorney Smith's favor is the fact that she has expressed remorse for her behavior. Weighing more heavily against Attorney Smith are the facts that both this case and her previous disciplinary case show a troubling pattern of poor bookkeeping, office mismanagement, inadequate communication with clients, and insufficient concern for her clients' reasonable needs. Attorney Smith also has displayed a pattern of excuse-making, blame-shifting, and obfuscation which suggests that these types of transgressions could happen again.
The suspension requires the attorney to petition for reinstatement. (Mike Frisch)
Once I joined Etsy, just because it was the place I wanted to buy one item, I found my inbox full with all sorts of communications. So this could be a cure for the holiday blues of Really Lonely People. You won't be ignored anymore. This statement is not an endorsement of Etsy. It is a suggestion that if you do need to join it to buy an item, do so by starting a whole new gmail account dedidated to it. Or preferably a compuserve one.
Etsy will sell you, if you want, a taxidermied mouse chess set. Imagine that the creator had to get 32 mice to make one set, and mice of varying sizes and apparent authority and movement. If it were cheaper than the (understandable) 450 buck price tag, I know a lot of people I'd have gotten this for.
The item I did get, which seems like a good idea and is very affordable, is a personalized set of Russian nesting dolls (3, 4, 5, even 6!). After you buy it and wade through other Etsy email, you'll get a request from the artist for family pics and iconic descriptions of family members--like my mom in her checkerboard shirt she would have to wear due to the corporate loyalty my dad (like his generation) had for working for Ralston Purina for all his life (a loyalty not repaid after Nestle bought it out). Then in a week or so you'll get nesting dolls that represent your family. Better than stiff mice! Too bad she is inundated so you'll have to wait till Epiphany or Armenian Christmas.
The nesting doll idea reminds me that this time last year I got a great gift from a Torts student who is a Russian national. It was a large nesting matryoshka but inside, instead of a smaller ditto, was a bottle of Gray Goose Vodka. Nice. I asked him why the French vodka, thinking I could tease him about his disloyalty. But he explained, "Russian vodka too big to fit in matryoshka." [Alan Childress]
I just received the following notice:
Georgetown University Law Center Professor Cornelia "Nina" Pillard has been confirmed to the U.S. Court of Appeals for the District of Columbia Circuit, often referred to as the nation's second highest court behind the U.S. Supreme Court.
"Nina's superb record as a leading Supreme Court advocate and legal scholar speaks for itself — she will make a remarkable appellate judge," said Georgetown Law Dean William M. Treanor. "I know I speak for all of Nina's colleagues and students when I say she has enriched this institution beyond measure with her charisma, intellect, and thoughtfulness. Though we are sad to lose her, we are thrilled and proud to send her on to the D.C. Circuit, where the same traits that made her such a valuable asset on our campus will be put to use strengthening the pursuit of justice."
President Barack Obama nominated Pillard to the 11-member court on June 4, 2013. In his remarks that day, Obama said Pillard's career "has been defined by an unshakeable commitment to the public good," and noted that once confirmed, she would "continue the D.C. Circuit's strong tradition of distinguished scholars going on to serve as judges — from Antonin Scalia to Ruth Bader Ginsburg."
Pillard joined the Georgetown Law faculty in 1997, sharing with her students a decade of experience as an accomplished litigator. She has briefed more than 25 cases in the United States Supreme Court, and argued nine times before the justices. She has litigated cases in federal trial and appeals courts around the country. Her most notable wins include United States v. Virginia (1996), which opened the Virginia Military Institute to women, and Nevada Department of Social Services v. Hibbs (2003), which sustained Family and Medical Leave Act rights against a constitutional challenge.
Pillard took a brief leave from Georgetown Law to serve as deputy assistant attorney general in the Office of Legal Counsel at the U.S. Department of Justice from 1998 to 2000. She earlier served as assistant to the Solicitor General from 1994 to 1997. She has taught civil procedure, constitutional law, and a variety of upper-level seminars and courses, and has been the faculty co-director of the Georgetown Law Supreme Court Institute.
A magna cum laude graduate of Yale College and Harvard Law School, she clerked for Judge Louis H. Pollak of the U.S. District Court for the Eastern District of Pennsylvania.
The country gains a judge. I lose a good neighbor. (Mike Frisch)
A District of Columbia Hearing Committee has approved a petition for a negotiated disposition in a matter involving an attorney's representation of a Japanese company before the Department of Commerce and the International Trade Commission.
The client manufactures large printing presses. The representation involved so-called "anti-dumping" matters, which involve the sale of foreign goods in the United States at an unfair low price.
The client was being investigated for anti-dumping violations. During the period, it sold two printing presses to the Dallas Morning News. The attorney submitted a questionnaire to Commerce in a petition to lift an order that omitted material facts about the Dallas sale.
According to the stipulated facts, the attorney had advised the client to make the appropriate disclosures and the client "rejected the advice."
The misconduct took place in 1998. It appears that the conduct did not result in a criminal or other proceeding against the attorney.
The stipulated sanction is a one-year suspension.
The case is In re Yoshihiro Saito and can be accessed through this link. The attorney had been a partner at Perkins Coie.
My view is that this is a reasonable and appropriate outcome for an aging case. (Mike Frisch)
Wednesday, December 11, 2013
The Illinois Review Board has issued a recommendation for a five-month suspension of an attorney who, while representing a client charged with drug distribution, posted a video of the transaction that he received in discovery on YouTube and Facebook.
The board found
Charles Burch, an Assistant States Attorney in Pike County, testified that he was required to turn over the video and police report to Respondent prior to trial. While he testified he was not required to turn over the video prior to the preliminary hearing, he was not aware of any rule or procedure that prevented him from producing the information to defense counsel prior to the preliminary hearing. The custom in his office was usually to turn the information over prior to the preliminary hearing in cases where the public defender was representing defendants but not in cases where the defendant was represented by private counsel.
Some time after March 4, 2011, Respondent viewed the DVD. To Respondent, the transaction, at the time he first viewed the DVD, "looked like the police were planting drugs", although the police are shown only in the last 10 seconds of the 18 minute video. Fulmer also viewed the DVD in Respondent's office with her sister. Respondent told Fulmer he was going to "pre-jury" the video to gather further opinions about the transaction. Fulmer expressed no objection. According to Fulmer, Respondent did not tell Fulmer he intended to post the video on the internet. Fulmer did not give Respondent permission to post the video of the drug transaction on the internet.
In early April 2011, Respondent paid a service to post the video on YouTube. He broke the video into two parts and entitled the videos "Cops and Task Force Planting Drugs- Part 1" and "Cops and Task Force Planting Drugs- Part 2", respectively. Respondent then posted on his Facebook page a link to the videos on YouTube.
Respondent testified that Fulmer was aware he was posting the video on the internet and in support, Respondent's secretary testified, based on a phone message, that Fulmer called the office once to see if the video had been posted. She also testified that Fulmer later called the office and laughed about the video and seemed excited and "very pleased". However, Fulmer testified that Respondent did not ask her permission to post the video on YouTube or discuss with her the ramifications of posting the video on the internet. She testified that after the video had been posted, Respondent called her, gave her the website address for the video, and told her he wanted the video to "go viral". She then went to her sister's house to view the video and testified that she was embarrassed by it. Respondent told Fulmer and her sister to post the videos on their Facebook pages and they did so, although Fulmer testified that "I wasn't sure how it was going to help me, but I guess that's why you hire an attorney because they know the law."
The State Police and the States Attorney's Office learned of the posting of the video on YouTube. Charles Burch took screen shots of the video, which indicated that the videos had each been viewed over 500 and 800 times, respectively. The office began to investigate how the video was placed on YouTube and discussed the posting with the Chief Judge of the Eighth Judicial Circuit, the Honorable Richard Greenlief. Officer Riley of the Illinois State Police testified that the posting of the video on the internet thereafter terminated the department's ability to work with the CI and undermined the department's credibility.
The board rejected the claim that the conduct was protected by the First Amendment
As to sanction
He published damning evidence on the internet with little to no thought or discussion of the possible consequences to his client. His conduct threatened the fairness of a criminal proceeding and harmed his client.
The Florida Judicial Ethics Advisory Committee has given a qualified blessing to a judge awarding deserving persons a so-called "challenge coin" for service to the justice system.
...would be given at the judge’s discretion and only as a reward for hard work and dedication to the court or community. The coin would be produced at the judge’s own expense and would bear the judge’s name and judicial circuit, as well as the date of the judge’s investiture. The coin would also bear the words “fiat justitia,” a Latin phrase meaning “let justice be done.”
In reaching its conclusion, the Committee acknowledges that the use of challenge coins varies depending on the organization. Although such coins have been used for many years in the military context to reward behavior and enhance morale, they have also been used by some organizations as proof of membership or to allow admission. Despite this association with membership or admission to a private club or organization, the Committee believes it unlikely that a recipient of a challenge coin bearing the judge’s name could credibly use the coin to convey to others that they are in a special position to influence the judge.
Nevertheless, the judge should exercise caution so as not to run afoul of the Code. The Committee recommends that the judge be mindful of the Code when selecting individuals to commend. For example, the judge should consider whether the selection of certain individuals or a group of individuals for recognition might reasonably be considered inappropriate political activity prohibited by Canon 7, or presents issues of impartiality, lending the prestige of the judicial office, or allowing others to convey the impression that they are in a special position to influence the judge. See Fla. JEAC Op. 94-25 (several committee members suggested that it would be more appropriate to delete laudatory remarks concerning the lawyers in an article to be published, or simply refer to them as trial counsel).
In conclusion, in answering this question in the affirmative, the majority of the Committee advises the judge to avoid presenting challenge coins in a manner that may reasonably be perceived to be a violation of the Code. The Committee also recommends that the judge remain vigilant to ensure that recipients of the challenge coin are not using it in a manner that would reflect poorly on the judge or that would cause ethical concerns for the judge, and in the event such information comes to the judge’s attention, the judge should re-assess the appropriateness of continuing this activity.
A minority is concerned
A minority of the Committee is of the opinion that the inclusion of the judge’s name and investiture date would be perceived or recognized as self-promotion and be demeaning to the judicial office. The spirit of the Canons would be best served by the deletion of the name and investiture date from the coins. The minority, otherwise, agrees with the rest of this opinion.
Tuesday, December 10, 2013
An attorney who used an otherwise dormant escrow account to be used for the benefit of a distressed client was publicly censured by the New York Appellate Division for the First Judicial Department.
The referee concluded in recommending censure
"In contrast to other respondents who have . . . demonstrated themselves to be greedy, dishonest, self-centered and indifferent to the needs of anyone but themselves, I find respondent in the instant matter to be the exact opposite. . . . [A suspension] should be reserved [for] attorneys who have been warned or previously admonished, who take the law to themselves to advantage themselves at the expense of others. . . On the other hand a private reprimand as the respondent suggests merely flies in the face of the notion that the IOLA account is pretty much sacrosanct. Clearly, respondent is an individual of caring and concern and to treat him otherwise would be wrong. It is my recommendation, based on the evidence and documents submitted that an appropriate sanction would be a public censure."
The findings by the court:
In this instance, respondent's misconduct was not the result of a well-orchestrated scheme to shelter substantial funds. Respondent's primary intent in allowing Ms. Cronin access and use of his escrow account was not to help Ms. Cronin evade her creditors. Rather, it was an attempt, albeit misguided, to help Ms. Cronin, who is a single mother suffering substantial financial problems. Common sense supports this conclusion, for if respondent's objective was to hide Ms. Cronin's assets, multiple alternatives were available to him to do so, including the use of any personal account in his own name or another to allow Ms. Cronin to transact her modest affairs. The fact that Ms. Cronin's financial situation was nearly judgment-proof likewise casts doubt on the venality of respondent's state of mind.
While respondent denied knowledge of the tax liens/warrants in the liability hearing, the staff and the Referee relied on circumstantial evidence to refute that denial; namely, that respondent must have known since he was an experienced practitioner in complex legal matters. The Referee made no finding that respondent had actual knowledge of the liens, but inferred that he must have known. The quality of the evidence speaks more to his competence than his intentional effort to conceal, and thus reduces the severity of the offense for sanction purposes.
However, the most important aspects to our conclusion are the undisputed facts that respondent did not maintain any client funds in his IOLA account, did not commingle his funds with those of any client, did not injure any client, and did not personally benefit in any way from assisting Ms. Cronin. We do not consider respondent a threat to the public, and we regard a suspension as unnecessary to protect its interests. A public censure of respondent is sufficient to send a message to the bar on the importance of IOLA conduct.
The Wisconsin Supreme Court ended a career at the bar that began in 2009 by revoking the license of an attorney:
Revocation of an attorney's license to practice law is the most severe sanction this court can impose. It is reserved for the most egregious cases. Although Attorney Cooper was not licensed to practice law until 2009, during the short time that he was a practicing attorney, he engaged in repeated misconduct in his handling of numerous client matters. Based on the state of the record before us, it appears that Attorney Cooper is unable to conform his conduct to the standards expected of all members of the Wisconsin bar. We agree with the referee that no sanction short of revocation would be sufficient to protect the public, achieve deterrence, and impress upon Attorney Cooper the seriousness of his misconduct. We also agree with the referee that Attorney Cooper should be required to make restitution to various clients and that he should be assessed the full costs of this proceeding.
The attorney had defaulted in the face of 39 charges of professional misconduct in ten client matters. (Mike Frisch)
The Illinois Review Board has recommended the censure of an attorney with the unfortunate surname of Cahnman.
This matter arises out of Respondent's conduct in taking a Sangamon County judge's personal appointment book, making a copy of a page from the book and attaching it to a motion, and then being less than candid when asked by the judge how he obtained the appointment book page...
The attorney represented a client in a child support matter
At the time of Jeanne and David Samuel's divorce, David, a doctor, was ordered to pay Jeanne certain amounts for child support. David moved to Louisiana after the divorce and in 2004, he filed a petition in Sangamon County for relief from his obligation of support. No further action was taken on the petition and in 2006, his counsel withdrew. In 2007 Jeanne filed a motion to establish an arrearage in the payments due from David. In February 2007, the Hon. Charles Gramlich held a hearing on Jeanne's motion. Because David's motion was no longer properly before the court, he advised David, who was pro se, to set his motion within thirty days. He then entered a judgment for arrearage against David for approximately $86,000.
In September 2007, the court ruled that David's motion to reduce child support "was either usurped by Judge Gramlich's order setting arrearage?or it was abandoned by Dr. Samuel." David then retained Respondent to represent him in modifying his support. David informed Respondent that he believed that he had set a hearing date before Judge Gramlich for March 1, 2007 but alleged that counsel for Jeanne had an ex parte communication with Judge
Respondent investigated his client's allegations by checking the court file, which contained no notice of hearing for March 1. Respondent knew that the judges in Sangamon County maintained personal appointment books and he wanted to see if Judge Gramlich's appointment book reflected a hearing on David's matter for March 1.
The appointment book was kept on the desk of Shirley Vinson, a receptionist for five judges in Sangamon County who had been employed in that capacity for twenty years. Vinson worked in an area that was not open to the public but that could be accessed by attorneys through a courtroom. In 2007, all hearings were scheduled by hand as the courthouse was not yet automated. Accordingly, Vinson kept the judges' appointment books on her desk. The appointment books were not public and also contained personal appointments for the judges. Attorneys could not schedule matters themselves in the books; only Vinson would write hearing information in the appointment books. While occasionally attorneys might look at an appointment book with Vinson in order to schedule a hearing, she generally kept the book closed on her desk and attorneys were not allowed access to the book.
Respondent never asked Vinson for permission to make a copy of a page from Judge Gramlich's appointment book and she never gave him permission to do so. No attorney had ever made such a request to her and if an attorney had made such a request she would have consulted the judge in question. While there was a copy machine near her desk, if she was at her desk she would have seen someone making a copy.
Judge Gramlich testified that he considered the appointment book to be his personal book.
Respondent testified that he asked Vinson to look at the appointment book to see if a hearing had been set for March 1, 2007. They looked at the book together. The book showed the case name on the page for March 1, but there was a line through the case name. Respondent testified that he then took the book to the copy machine and he copied the page. He acknowledged it was possible he copied the page while Vinson was on the phone or was otherwise occupied.
On July 11, 2008, Respondent filed a motion in the Samuel matter alleging that his client had scheduled a hearing for March 1, but that, on information and belief, the hearing was unilaterally canceled by an ex parte communication from the opposing attorney to the court. In support, Respondent attached a copy of the page from Judge Gramlich's appointment book. At the hearing on the motion, on July 18, Judge Gramlich looked at the motion and the exhibits. He was surprised to see the page from his personal appointment book, and asked Respondent where he obtained the page. According to Judge Gramlich, Respondent replied, "something to the effect that Shirley gave it to me" or "I got it from Shirley." Respondent admitted in his Answer to the Administrator's Complaint that "Respondent told Judge Gramlich that Vinson had given him a copy of the March 1, 2007 calendar page."
Judge Gramlich was surprised at Respondent's representation. Following his court call, he talked to Vinson. Vinson was "incredulous" and denied giving Respondent a copy of the page of the appointment book or any prior knowledge that he had copied the page.
Following an additional hearing, Judge Gramlich issued an order finding Respondent in indirect criminal contempt, and noting that Respondent's conduct "impeded, embarrassed, and obstructed the court." While he acknowledged that that language "might have been a bit of overkill" he added that misleading the court does impede the implementation of justice. The judge fined Respondent $100, ordered Respondent to provide a written apology to the judge and to Vinson, and ordered Respondent from using the copy machine without prior permission from the Court Administrator. Respondent appealed the contempt order. The Appellate Court vacated the fine and modified the contempt from indirect criminal contempt to indirect civil contempt.
A non-attorney town court justice has been removed from office by the New York Court of Appeals.
The misconduct found by the Commission on Judicial Conduct involved two matters.
One was a seat belt violation charge that involved a lifelong friend whose family owneed a company where the justice had been employed. The justice accepted testimony of a ticket error (the friend claimed to be in a different Mercedes Benz than alleged) and dismissed the charges without notice of his personal connection to the defendant. He failed to notify the DA's office (which had no one present) and failed to adjourn the case.
The other matter involved an ex parte communication.
A dissent concludes that the misconduct was not serious enough to warrant removal from office. (Mike Frisch)
Monday, December 9, 2013
The New Hampshire Supreme Court affirmed an order holding that an attorney's file is subject to disclosure in a probate matter.
The attorney was consulted twice, but not retained, for estate planning of a deceased couple. One of the brothers claims that the other brother exercised undue influence on the parents
...because the Attorney's file is relevant to an issue between the parties who claim through the same deceased client, we hold that the trial court did not unsustainably exercvise its discretion in allowing the file to be disclosed to the parties under [rules of evidence].
The court also sustained disclosure of correspondence between the attorney and one of the brothers. (Mike Frisch)
A dispute over a contract for architectural services led to a six-month suspension of a New Jersey who supplemental a busy personal injury practice with a business that purchased and restored buildings for rent.
The attorney failed to pay the architect's bill and was sued for breach of contract. He claimed that he was duped into signing two contracts and that the fee was $7,500.
The misconduct involved the submission of fabricated documents to support the attorney's claim.
The Disciplinary Review Board found that the attorney knew that the contract that he submitted into evidence had been altered and had
...no compunctions about swearing to its accuracy on no fewer than seven occasions, thereby demonstrating a pattern of misrepresentations. We refrain from imposing a lengthier suspension only because of [his] clean record of more than twenty-five years. We also noted the high moral regard in which he was held ny his peers and others.
The DRB rejected the defense that the attorney had not engaged in the misconduct because he was "computer illiterate."
The DRB also noted that the complaint was not filed by the architect, but rather by a "non-lawyer activist." (Mike Frisch)
A Massachusetts attorney was publicly reprimanded for bring a sealed envelope into a correctional facility.
The envelope was given to the attorney by the inmate's brother. The respondent had not read the rules and regulations posted in the lobby or published in the CMR regarding visits and materials that may be delivered to an inmate or brought into an institution. As a result, the respondent was not aware that she was required to obtain the permission of the superintendent or commissioner to deliver the contents of the sealed envelope from the client’s brother to her client, and she had not obtained permission. The contents of the sealed envelope were confiscated, and the respondent was not permitted to meet with her client that day. The respondent was barred from all Department of Correction institutions and facilities for one year, pursuant to 103 CMR 483.16(5)(d).
The respondent’s conduct in failing to read the pertinent rules and regulations and in attempting to deliver to her client material from his family without the permission of the superintendent or commissioner was in violation of Mass. R. Prof. C. 1.1 and 8.4(h).
In aggravation, the respondent received an admonition in 2007 for unrelated conduct.
Friday, December 6, 2013
The Nebraska Supreme Court has rejected a challenge to requiring that all attorneys be members of the State Bar Association.
The court discussed at length the history of unified or mandatory bar membership and upheld the concept.
The centerpiece of the court's holding is that mandatory dues must only fund matters that relate to the regulation of the legal profession.
Laudable other programs such as lawyer assistance programs can be funded through voluntary souces, but not from required bar dues.
The court adopted administrative charges to ensure that the unified Bar Association "remains clearly within the permitted scope of constitutional jurisprudence" and to avoid costly future litigation that has taken place in other jurisdictions.
The court does not foresee a "parade of horrors predicted by the petitioner and the Bar Association..."
UPDATE: I've had a chance to look a bit more closely at this opinion. It is worthy of careful consideration when we look at what many of the unified State Bars have evolved into.
It should send shivers down the spine of the executive leadership of the District of Columbia Bar, which thinks its warrant is to invest in real estate as well as the legal profession.
Perhaps a court challenge to the D.C. Bar's building purchase is a worthy undertaking. (Mike Frisch)
The Iowa Supreme Court has suspended an attorney for at least one year, noting that he was "[n]ot the first Iowa lawyer who has become entangled in a deception with ostensible Nigerian connections."
The attorney had arranged for five clients to advance funds for a person who claimed to be the heir to a fortune. Charges that the attorney knowingly participated in the fraud were withdrawn.
Notably, among the violations found were lack of competence.
The court noted that a "cursory" search of the Internet would have alerted the attorney to the likelihood of a scam. (Mike Frisch)
Thursday, December 5, 2013
The Florida Supreme Court has rejected as unduly lenient a proposed 90-day suspension and instead ordered a one-year suspension for an attorney's misconduct in an immigration matter and subsequent malpractice suit:
Here, Respondent accepted a substantial fee from his client but did not perform notable work in furtherance of that representation. He also misused his client's funds by twice traveling to Brazil, once for no apparent case-related reason and once as unnecessary to obtain the information sought.
He also failed to ciommunicate with the clients. In the malpractice case, he failed to produce documents, did not appear for a deposition and filed frivolous interrogatory responses.
The court also held that denying costs to the Bar was an abuse of discretion. (Mike Frisch)
The Virginia State Bar is calling for comments on a new Rule 5.8, dealing with law firm departures.
The new rule would provide
a) Absent a specific agreement otherwise:
(1) Neither a lawyer who is leaving a law firm nor other lawyers in the firm shall unilaterally contact clients of the law firm for purposes of notifying them about the anticipated departure or to solicit representation of the clients unless, after bona fide negotiations, the lawyer and an authorized representative of the law firm have been unable to agree on a joint communication to the clients concerning the lawyer leaving the law firm; and
(2) A lawyer in a dissolving law firm shall not unilaterally contact clients of the law firm unless, after bona fide negotiations, authorized members of the law firm have been unable to agree on a method to provide notice to clients.
(b) When no procedure for contacting clients has been agreed upon:contain false or misleading statements, and shall give notice to the clients that the lawyer is leaving the law firm and provide options to the clients to choose to remain a client of the law firm, to choose representation by the departing lawyer, or to choose representation by other lawyers or law firms; and
(2) Unilateral contact by members of a dissolving law firm shall not contain false or misleading statements, and shall give notice to clients that the firm is being dissolved and provide options to the clients to choose representation by any member of the dissolving law firm, or representation by other lawyers or law firms.
(c) In all instances, notice to the clients shall provide information concerning potential liability for fees for legal services previously rendered, costs expended, and how any deposits for fees or costs will be handled.
(d) In the event that a client of a departing lawyer fails to advise the lawyer and law firm of the client’s intention with regard to who is to provide future legal services, the client shall be deemed to remain a client of the law firm until the client advises otherwise.
(e) In the event that a client of a dissolving law firm fails to advise the lawyers of the client’s intention with regard to who is to provide future legal services, the client shall be deemed to remain a client of the lawyer who primarily provided legal services to the client on behalf of the firm until the client advises otherwise.
A recent complaint filed by the Illinois Administrator alleges:
In late December 2012, Respondent traveled to California to visit some friends for the New Year’s holiday. During the visit, Respondent purchased 7.25 pounds of "sour diesel" marijuana from a friend, two pounds of which he intended to distribute to other friends in Illinois and a friend in Denver who had given Respondent money for the purchase. Sometime after January 1, 2013, Respondent began traveling from California in his grey Subaru Outback to his residence in Mount Morris, Illinois.
At or about 9:40 a.m. on January 3, 2013, Respondent was traveling eastbound on Interstate 80 through Winnemucca, Nevada, with the 7.25 pounds of marijuana, referred to in paragraph one, above, in his car. At that time, Respondent was stopped by the Humboldt County Sheriff’s office for speeding.
When approached by the officer, Respondent handed him the vehicle registration and his business card, which identified Respondent as an attorney. The officer smelled marijuana in Respondent’s car and asked Respondent if he could search the vehicle. Respondent denied the officer’s request. When the officer then explained that he had a drug-sniffing dog in his car, Respondent stated that he did not have any drugs in the car.
Respondent’s statement to the officer was false. As Respondent knew, he was carrying 7.25 pounds of marijuana in his car and his statements and refusal to consent to a search were intended to conceal from the officer that he had 7.25 pounds of marijuana in his car.
The officer then brought a trained drug-sniffing dog from his police car and walked the dog around the perimeter of Respondent’s car. The officer told Respondent that the dog had detected marijuana in Respondent’s car. The officer then asked Respondent if his car contained drugs, to which Respondent stated, "not that I know of." The officer asked Respondent again if he could search the car and Respondent consented to a search of two pieces of luggage in his car but not to a search of the entire car.
Respondent’s statement to the officer that he did not know if his car contained drugs was false. As Respondent knew, he was carrying 7.25 pounds of marijuana in his car and his statements and refusal to consent to a full search were intended to conceal from the officer that he had 7.25 pounds of marijuana in his car.
The officer then obtained a warrant by phone to search Respondent’s entire vehicle. After searching the vehicle, the officer found a vacuum-sealing machine, supplies for the machine, vacuum-sealed brownies containing marijuana and eight separate vacuum-sealed bags of marijuana (totaling 7.25 pounds of marijuana) and $1,050 in cash. The officer then arrested Respondent.
On or about January 8, 2013, the Humboldt County District Attorney charged Respondent in the Justice’s Court of Union Township, Humboldt County, Nevada, with a felony count of transporting a controlled substance, and another felony count of possession of a controlled substance for the purpose of sale. (State of Nevada v. Richard C. Folk, case number 13 CR 00016) A copy of the complaint is attached as Exhibit One.
On January 24, 2013, the Humboldt County District Attorney filed an amended complaint against Respondent which dismissed both felony counts described in paragraph seven, above, and charged Respondent instead with one misdemeanor count of possession of marijuana. On or about February 15, 2013, Respondent pled guilty in case number 13 CR 00016 to possession of marijuana, a misdemeanor, in violation of NRS 453.336(4)(a) and agreed to forfeit ownership of his Subaru to the Humboldt County District Attorney’s office.
On March 26, Judge Letty Norcutt entered an order in case number 13 CR 00016 sentencing Respondent to 19 days in jail with credit for time served, and ordered Respondent to pay a $250 fine. A copy of the docketing sheet order entry is attached as Exhibit Two.
Obviously, there are serious disciplinary violations here if the alleged facts are proven.
Notably, the Administrator alleges that lying to the police violated Rule 4.1. As the rule requires that the false statement be "in connection with the representation of a client," that may be an overcharge. (Mike Frisch)