Thursday, February 11, 2016
A new opinion from the Florida Judicial Ethics Advisory Committee
Whether potential ethical violations are raised for a judge when a law firm publicly acknowledges, promotes, or markets the fact that an attorney with the law firm is the child of a specifically named judge.
ANSWER: Yes. The judge must adamantly and genuinely encourage the law firm not to publicly acknowledge, promote, or market the attorney’s relationship with the judge.
...publicly announcing and marketing the relationship between the Inquiring Judge and child lends the prestige of judicial office to advance the private interests of the law firm to which the Inquiring Judge’s child is a member. The public may be inclined to use this particular law firm because of the specific advertisement of this familial relationship between the judge and attorney child. Furthermore, it gives the public the impression that because the Inquiring Judge’s child is an attorney in the firm, that law firm has a special relationship with the Inquiring Judge or the Inquiring Judge’s colleagues. Utilizing the judge’s office in this fashion runs afoul of Canon 2B. See also Fla. JEAC Ops. 13-23 (judge ethically prohibited from posing for church photograph for “God and Country Day” to be published in newspaper if the photograph is to be utilized in the solicitation of members or donations); 10-35 (sitting judge may not permit mediation firm that judge will be joining to send out announcement that sitting judge will be joining the firm upon retirement); 03-03 (judge’s participation in a law firm's litigation program by presiding over mock trials at a law firm’s training retreat gives other firms and public the perception that judge has a special relationship with that particular law firm).
The JEAC recognizes that the law firm may reject the Judge’s request not to promote or advertise the Judge’s parent-child relationship with the attorney in the law firm. As we have instructed other judges in other JEAC opinions in which a third party is involved, the Inquiring Judge is advised to adamantly and genuinely encourage the law firm not to promote this relationship. See Fla. JEAC Ops. 12-06 (judicial candidate must encourage spouse not to campaign at a political party function wearing the judicial candidate’s campaign badge); 11-10 (judge instructed not to permit judge’s home to be used for a campaign gathering on behalf of a political candidate who is not a member of the household and judge must adamantly and genuinely encourage the spouse to host the event elsewhere). The Inquiring Judge is not ethically responsible for the actions of the law firm or any third party once the Inquiring Judge has apprised the third party not to take this action.
The Ohio Supreme Court has denied admission to an applicant who was found to have twice written after time was called on the bar examination.
Lingyu Jia of Columbus, Ohio, is a 2013 graduate of the Case Western Reserve University School of Law and has applied as a candidate for admission to the Ohio bar. On the recommendation of the admissions committee of the Columbus Bar Association, the Board of Commissioners on Character and Fitness approved Jia’s character and fitness and permitted her to take the July 2014 bar exam.
The basis for the denial
Jia applied and sat for the July 2014 bar exam. On the second day of the exam, the MBE portion, the day was divided into a morning session and an afternoon session. During each multiple-choice questions, for which they were to fill in a bubble on the provided answer sheet.
The applicants were seated two to a table, diagonally positioned with one applicant on each side of the table. As the morning session wound down, and consistent with the written and director of the Office of Bar Admissions gave a warning five minutes before the session was to end. Jia received, heard, and understood the instructions. But when the bar-exam official gave the stop command, Jia continued to fill in bubbles after time was called.
The male applicant sitting at an adjacent table to the left of and facing Jia testified that he looked over and observed Jia fill in about three bubbles after time was called. He did not immediately report his observation to a proctor, though he did ask a female applicant at his table—whom he did not know prior to the exam—if she had observed Jia writing after the command to stop. She replied that she had not. Jia does not dispute that she continued to write after time was called at the end of the morning session, but she testified that she filled in just one bubble.
During the afternoon session, the bar-exam official once again gave a five-minute warning before the end of the session. Five minutes later, she instructed the applicants to stop writing and place their materials in the upper-lefthand corner of the table. Because of the conversation between the male and female applicants at the adjacent table following the morning session, the two applicants looked in Jia’s direction to see if she would again write after time was called. Both of the applicants at the adjacent table testified that Jia filled in one bubble after time was called. The next morning, the female applicant advised a proctor of her observations. Jia testified that she was certain that she did not write past the allotted time during the afternoon session.
The third and final day of the bar exam was a morning-only session consisting of six essay questions that were distributed two at a time. The applicants were permitted to type their answers to the essay questions using a laptop computer program.
Because the female applicant reported her observations the previous day, Rosey White, a 13-year employee of the Office of Bar Admissions and a proctor for the exam, approached Jia’s table at the end of the time allotted for the first two essay questions. According to White’s testimony, after the instruction to exit the program had been given, she observed that Jia did not remove her hands from the keyboard and let them hover over it as if she were going to continue typing—but she did not continue to type. White approached Jia, placed her hand on Jia’s shoulder or desk, and gave her a command to stop. After receiving the verbal command, Jia removed her hands from the keyboard and then exited the essay program. Neither the adjacent applicants nor the proctor observed Jia typing past the allotted time in either of the remaining essay sessions.
The male applicant reported his observations.
A hearing was held and it was determined that the applicant had passed even with a penalty
The Board of Bar Examiners adopted the panel report and imposed a 16.7-percent penalty on the MBE portion of Jia’s exam—a sanction comparable to those imposed on applicants who had been determined to have written after time was called on an essay question. Even with that penalty, Jia’s score was high enough to pass the bar exam, but the Board of Bar Examiners referred the matter to the Board of Commissioners on Character and Fitness for further review.
The court concluded that the applicant had failed (for now) the test of character
Because the evidence shows that Jia continued to write after time was called on two separate occasions during the bar exam, we agree that she has failed to satisfy her burden.
Accordingly, we adopt the character-and-fitness board’s finding that in light of her conduct during the bar exam, Jia has failed to prove that she currently possesses the requisite character, fitness, and moral qualifications for admission to the practice of law in Ohio. Consequently, we disapprove Jia’s application at this time. However, Jia may submit an applicant’s affidavit and a newly completed supplemental character questionnaire to the Office of Bar Admissions on or after May 1, 2016, and if those documents reveal no further character and fitness issues, Jia may be sworn in as a member of the Ohio bar.
Lesson here. (Mike Frisch)
For those who keep an eye on the traffic of this blog (i. e. me), it looks like we will get our 2.5 millionth page view today.
It has been gratifying to see that we have been able to draw some attention to - most particularly - the imposition of professional discipline by the self-regulating legal profession.
My first post in October 2006
This is my first venture into the intimidating world of blogging. As a former longtime prosecutor of Bar discipline cases in the District of Columbia as well as a professor teaching professional responsibility courses at Georgetown University Law Center, I am grateful to have a forum to discuss my primary concern about regulation of the legal profession, namely that the public interest in an honorable and ethical profession is too often subordinated to "the parochial or self-intersted concerns of the bar." ABA Model Rules, Preamble at comment 12. It is my intention to stimulate discussion about the regulatory regimes of the various state bars in aid of heightened public awareness and to encourage reform where necessary to the public interest. I look forward to input from around the country of persons who either share or wish to dispute my concerns.
I trust that we have done our best to heighten public awareness about both the incredible foibles of our fellow members of the Bar and the often inadequate response of lawyer disciplinary systems.
The internet - and particularly the rising availability of access to oral arguments and disciplinary information - give the public new tools to evaluate the quality of self-regulation.
As an example, I have watched the arguments in the Kansas discipline cases for many months and have been impressed by the professionalism of the court and disciplinary counsel. I've also been impressed with the fact that the Supreme Court is able to impose final discipline within six months of receiving the hearing report. Swift and fair discipline makes one proud.
Many state high courts and regulatory agencies have made commendable progress in providing this much-needed transparency. It is easy to find information about lawyer misconduct in a few clicks in many places.
But many courts and State Bars still hide this information.
Try finding out much about bar discipline in Alabama. And Alabama does not stand alone in this regard. A scholarly analysis of access to disciplinary information in the 50 states would be a worthy project.
Ten years ago, I called for reform in the District of Columbia. My goal for the new-term future is to bring that call up to date by evaluating the progress - or lack thereof- since my initial venture.
In the meantime, I express my appreciation for the response to our efforts. (Mike Frisch)
Wednesday, February 10, 2016
A trial court erred in dismissing allegations on non-compliance with an order of suspension by summary judgment, according to a recent remand order of the California State Bar Court Review Department.
The attorney had been suspended for two years
On October 21, 2013, the hearing judge granted Eldridge’s motion, over OCTC’s objection, and dismissed the matter with prejudice. The judge found that Siminski, her former husband (the adverse party in the litigation), and his attorney were all "aware of the impending suspension and substitution of counsel well in advance of the filing or effective date of [the SCO]." As such, the hearing judge concluded that "[t]he prophylactic effect of rule 9.20 was served."
Eldridge brought her motion pursuant to rule 5.124 of the Rules of Procedure of the State Bar, which provides specific and limited grounds for dismissal. She did not argue that the NDC failed either to state a legally disciplinable offense or to give sufficient notice of the charges. (See Rules Proc. of State Bar, rule 5.124 (C), (E).) Instead, Eldridge sought a dismissal on the merits, arguing that she had not violated rule 9.20 or committed acts involving moral turpitude. She relied on her and Siminski’s declarations and other supporting documents. However, the State Bar Rules of Procedure, including rule 5.124, do not provide for such a pretrial summary judgment motion...
We also find the judge erred in that she dismissed the proceeding on grounds that the rule 9.20 violation alleged in the NDC does not constitute a disciplinable offense. To begin, the judge observed that Eldridge did not represent Siminski in litigation at the time the SCO went into effect "as she had properly substituted out of the litigation" a day earlier. This conclusion overlooks that the filing date, not the effective date, of the SCO establishes the timeframe for determining whether client or litigation matters are considered "pending" and whether notification is required under rule 9.20.
The resignation of a town court justice has been accepted by the New York Commission on Judicial Conduct.
From the stipulation
On December 15, 2015, Judge Powers pled guilty to a reduced charge of fourth degree grand larceny, also a felony, admitting that between October 2007 and July 2014, she stole an amount exceeding $1,000 from bank accounts belonging to the Russell Pee Wee Association at the North Country Savings Bank, where she was employed.
Syracuse.com reported the resignation of the justice, who is not an attorney. (Mike Frisch)
The Minnesota Supreme Court has disbarred attorney Paul Rambow
Rambow’s extensive misconduct resulted in significant harm to clients, the public, and the legal profession. At least 23 client matters were involved in this disciplinary action, and each of these clients was harmed by Rambow’s misconduct. For example, in the H.R. matter, which involved a child’s injury from a dog bite, Rambow violated the court’s order to produce discovery responses and "could not explain his failure to comply." The district court dismissed the case "due to [Rambow’s] failure to prosecute the matter." Similarly, Rambow’s misconduct in the W.S. matter, which included failing to appear for depositions and making a misrepresentation to an arbitrator, contributed to a dismissal. In another personal injury matter, Rambow referred his client, M.P., to a doctor, J.B. After M.P. became "dismayed" with J.B. and filed a complaint, Rambow submitted to a Medical Review Board an affidavit in support of the doctor that disparaged his client, M.P.
In addition, several of Rambow’s personal injury clients faced significant unpaid medical bills. For example, after Rambow received medical reimbursement checks totaling $4,117.24 from L.S.’s insurer, Rambow (or someone at his direction) endorsed and deposited the funds into Rambow’s trust account without L.S.’s knowledge or authority. Although Rambow’s staff claimed that the checks were used to pay L.S.’s medical bill, no such payment was made. Because the insurance proceeds were not used to pay the medical bill, L.S. became personally responsible for paying the expense. Similarly, in the N.O. matter, Rambow or his staff forged the endorsements on medical reimbursement checks from N.O.’s insurer. Rambow then misappropriated the funds from the checks, which were intended to pay for N.O.’s medical treatment.
Also, two aggravating factors are present: Rambow’s lack of any remorse or recognition of his wrongful conduct and his significant legal experience comprising nearly 30 years of practice.
The Oklahoma Supreme Court has denied a petition for reinstatement of an attorney who had gone to Texas and returned.
Applicant filed a petition for reinstatement after resigning membership in the Oklahoma Bar Association in 1999. Applicant continued practicing in Texas until 2003 when he resigned in lieu of discipline from the Texas Bar Association. The respondent, Oklahoma Bar Association, and the Professional Responsibility Tribunal recommended that applicant be reinstated. We find applicant failed to properly file his petition for reinstatement, failed to show that he has not engaged in the unauthorized practice of law, and failed to show that he has the competency and learning necessary to engage in the practice of law.
He had begun to practice in Texas and resigned from the Oklahoma Bar in 1999.
In July of 2001, Bodnar moved from El Paso to Dallas and, on April 13 of 2002, began practicing law with a Dallas firm.
When he was hired by the Dallas firm, Bodnar began "winding down" his El Paso practice, leaving his office open with a legal assistant in charge. He "transferred" several cases to other attorneys, expecting that they would file substitutions of counsel and enter appearances. However, he did not notify his clients or get their consent to transfer the cases in violation of Rule 1.15(d) of the Texas Disciplinary Rules of Professional Conduct.1
On May 15, 2002, Bodnar returned to El Paso for a divorce trial. Bodnar admits that his legal assistant in El Paso was forwarding his important mail to him in Dallas. He contends that when he closed his office in August of 2002, the legal assistant took his computer, stopped forwarding important mail, and defrauded him of funds. The only mistake he admits to is trusting his "seemingly loyal employee."
In December of 2002, Bodnar left the law firm and began working as a title examiner for American Title Company. Effective September 22, 2003, Bodnar resigned his membership in the Texas Bar in lieu of discipline. He continued working as a title examiner, with a few lapses, for different companies until early 2007 when he retired and moved to Tulsa, Oklahoma. He then obtained an Oklahoma certification to teach social studies courses.
In 2007 and 2008, Bodnar worked as a substitute teacher and In-house Suspension Supervisor. In August of 2008, he was hired by Glenpool Public Schools as the In-house Suspension (Placement) Supervisor and was employed there at the time of filing his petition for reinstatement. Bodnar contends that he has not practiced law since 2002, about thirteen years.
He failed to prove present competence to practice
In the thirteen years since Bodnar resigned from the Texas Bar, he has subscribed to and read the Oklahoma Bar Journal for three months just prior to his reinstatement hearing and has taken one continuing legal education class. He posits that getting a teaching certification in social studies and teaching high school social studies during one summer term also shows his continued learning. While worthwhile and not to undermine the value of teaching, we cannot accept that these two activities were sufficient to show to his competency and learning in the law. Bodnar's feeble attempt must be compared to that of practicing attorneys who are required to take twelve hours of continuing education, including one hour of ethics, every year. Rule 3, Rules for Mandatory Continuing Legal Education, 5 O.S.2011, ch. 1, app. 1-B, r. 3. Further, Bodnar's failure to comply with the rules for his reinstatement is evidence that he does not possess the competency necessary for the practice of law. In re Reinstatement of Munson, 2010 OK 27, ¶ 16, 236 P.3d 96, 102.
He also had been reprimanded in Texas. (Mike Frisch)
Tuesday, February 9, 2016
The cryogenics company that holds the head of baseball legend Ted Williams has lost its bid for defamation damages against a former employee and Vanguard Press.
The New York Appellate Division for the First Judicial Department held
As the motion court found, all the allegedly false and defamatory statements in the book written by defendant Baldyga and published by defendant Vanguard are related to plaintiff's cryogenic business, which plaintiff publicized, and, therefore, all of those statements are subject to the actual malice standard of proof in a libel action (see James v Gannett Co., 40 NY2d 415, 421 ). Vanguard and Baldyga established prima facie that neither of them published the book with knowledge that the statements were false or with reckless disregard of whether or not they were false, and plaintiff offered no evidence sufficient to raise an issue of fact (see Kipper v NYP Holdings Co., Inc., 12 NY3d 348, 353-354 ). Plaintiff's affiant had no personal knowledge of the operative events (see CPLR 3212[b]). As to its contention that it needs further discovery, plaintiff failed to demonstrate that facts essential to justify opposition to defendants' motions might exist but could not then be stated (see CPLR 3212[f]). Moreover, the record shows that plaintiff had, and failed to take advantage of, a reasonable opportunity to pursue the disclosure it now seeks.
This post provides some details on the earlier stages of the litigation.
On October 29, 2010, Justice James A. Yates refused to dismiss tort and defamation claims, among other claims, against the authors and the publisher of a book about Alcor Life Extension Foundation, Inc. (“Alcor”). Alcor Life Extension Foundation, Inc. v. Larry Johnson, Vanguard Press, Inc. and Scott Baldyga, Index No. 113938/2009 (Sup. Ct., NY County, Nov. 3, 2010). Alcor is a not-for-profit organization in the field of cryonics, which is the practice of keeping a clinically dead human body or brain frozen in the hope of later restoring it to life with the help of future technologies. The book, called Frozen, was written by Larry Johnson (“Johnson”), a former employee of Alcor, and co-author Scott Baldyga (“Baldyga”) and published by Vanguard Press, Inc. (“Vanguard”). Alcor alleged in its Complaint that Frozen disclosed confidential and proprietary information about Alcor and its members, including information regarding baseball legend, and alleged Alcor member, Ted Williams.
Johnson was employed by Alcor for about seven months and, during his time at Alcor, he was promoted to the position of Chief Operating Officer (“COO”). Alcor alleged that, as the COO, Johnson had access to “patient records, case files, medical procedures, membership information, scientific research, developing technologies, methodologies and operations procedures of Alcor.” Alcor further alleged that, the day after his employment at Alcor ended, Johnson launched a website called www.FreeTed.com where the public could pay to view private and confidential information of Alcor, including alleged photographs of deceased baseball player Ted Williams.
Alcor's response to the book and Mr. Johnson's allegations is linked here.
As a lifelong fan of The Kid, I find his post-death controversy distressing. (Mike Frisch)
The District of Columbia Disciplinary Counsel has informally admonished an attorney whose delay in prosecuting a divorce action for his client caused the estate to go to a long-estranged first wife when the client died.
Disciplinary Counsel concludes that you violated these [cited] Rules when you failed to advance your client's interests in obtaining a divorce as quickly as possible to permit him to marry Ms. Burgin. You understood that material assets were at stake, that your client wished to pass those assets on to Ms. Burgin - not to the woman from whom he had been separated for nearly 30 years, and that time was of the essence given your client's terminal condition. You failed to take a thorough or diligent approach to locating Mrs. Woodruff to serve her and were willing to wait indefinitely for your extremely ill client to conduct that legwork. Then, after the court dismissed the divorce action in October 2007, you waited four months before moving to reinstate it. Your actions and failures to act violated your duty to act competently, with diligence and zeal, and promptly. You failed to accomplish your client's goal to obtain a divorce in order to permit him to remarry before he died - a goal that could have succeeded had you given the matter the priority and attention required under the circumstances - in violation of Rules I. I (a) and (b), and l .3(a) and (c).
Ms. Burgin sued the attorney for legal malpractice but lost on appeal because she had not been the attorney's client.
The case is In re Nigel L. Scott and can be found at this link.
Disclosure: Mr. Scott was counsel for an attorney I prosecuted early in my bar counsel career. (Mike Frisch)
The Illinois Administrator has charged two attorneys with misconduct as co-respondents.
Count One deals with the alleged mishandling of returned bond money in a attempted murder case.
In or around September, 2012, Respondent Gonzalez and Respondent Carroll and Lazar agreed that Respondents would represent Lazar in the defense of the charges referred to in paragraph one, above. Respondent Gonzalez, on behalf of herself and Respondent Carroll, agreed to accept $17,500 as the fee to represent Lazar to the conclusion of his criminal case, which was to be paid to them from the proceeds of any bond refunds relating to case number 11 CR 632.
On March 7, 2014, case number 11 CR 632 proceeded to jury trial, and at the conclusion of that trial Lazar, was convicted of attempt murder. At that time, the court entered an order revoking Lazar's bond.
On May 9, 2014, Respondent Gonzalez, purportedly on behalf of Lazar, filed a petition requesting that the $35,000 bond that had been paid be refunded to Respondent Gonzalez. The Court ordered the Clerk of the Circuit Court of Cook County to remit to Respondent Gonzalez any bond refund due Lazar.
Pursuant to Respondent Gonzalez and Respondent Carroll's agreement with Lazar, referred to in paragraph three, above, Respondent Gonzalez and Respondent Carroll were entitled to only $17,500 of the bond refund as their fee, and were obligated to remit to Lazar and his family the balance of $14,000 of the bond refund.
On June 3, 2014, the Clerk of the Circuit Court of Cook County wire-transferred $31,500 into Respondent Gonzalez's client trust account at JP Morgan Chase Bank ending in the four digits 6170. The wire-transferred funds represented Cook County's refund of Lazar's bond, minus court fees.
On or around June 9, 2014, Respondent Gonzalez and Respondent Carroll agreed that they would split the proceeds of Lazar's bond refund, with each of them receiving $15,750. Lazar did not participate in that conversation.
On June 9, 2014, Respondent Gonzalez caused $15,750 to be wired from her JP Chase client trust account ending in four digits 6170 into her JP Chase Bank account ending in the four digits 9091, which represented half of Lazar's bond refund referred to in paragraph six, above.
Between July 14, 2014 and November 31, 2014, Respondent Gonzalez gave Respondent Carroll five checks that totaled $15,800, which represented half of the proceeds from Lazar's bond money, as well as $50.00 from an unrelated client matter.
On several occasions between May 1, 2014 and November 12, 2015, Lazar's relatives, including his brother Jessie Lazar, asked Respondent Gonzalez and Respondent Carroll to return the $14,000 to which Lazar was entitled from the bond.
As of November 12, 2015, the date that Panel C of the Commission Inquiry Board voted the filing of this complaint, Respondent Gonzalez and Respondent Carroll have refunded no portion of the $14,000 to which Lazar and his family were entitled. Respondents' continued retention of those funds, and their use of those funds for their own purposes, constitutes a conversion of the funds.
Count Two charges Gonzalez alone with charging and retaining an unreasonable fee.
Count Three alleges a Rule 4.2 violation in contact with a client's co-defendant on the part of Carroll.
On December 29, 2014, Assistant Public Defendant David McMahon, who had been assigned to represent McDonald, was at Division 10 of the Cook County Department of Corrections meeting with McDonald. A corrections officer interrupted that meeting to advise McMahon that another attorney was outside seeking to meet with McDonald.
Shortly thereafter, Respondent Carroll came into the room with Gonzalez.
At that time, McMahon spoke to Respondent Carroll and told him that McMahon was McDonald's attorney and that Respondent Carroll and Gonzalez were not permitted to speak to McDonald.
On December 31, 2015, Respondent Carroll returned to the Department of Corrections and met with McDonald to discuss the charges that he and Murray were facing and to discuss a plea deal that had been offered to McDonald by the Office of the Cook County States Attorney.
At no time did Respondent Carroll obtain McMahon's consent to communicate with McDonald regarding the charges pending against McDonald and Murray.
I have seen matters where attorneys who acted in concert were charged together. It is rarer to see (as here) unrelated misconduct charges as well. (Mike Frisch)
The Charlotte News & Observer has published an article that raises questions of disparate treatment of prosecutors and defense counsel by the North Carolina State Bar.
A former State Supreme Court justice has called for an independent evaluation of the bar's disciplinary arm.
The call for evaluation comes amid questions about the bar’s aggressive prosecution of three defense attorneys who have worked on Racial Justice Act and innocence inquiry cases.
The bar, which has more than 28,000 members, has developed a divide similar to the one existing “in the society we live in,” Orr said.
“There are two extreme camps,” Orr said, describing one side as more supportive of prosecutors and the other more supportive of defense attorneys.
Orr sees a mindset of antagonism in disciplinary cases because many of the bar lawyers are former prosecutors themselves.
“The ability to use the bar disciplinary process as a tool, a weapon, so to speak, is pretty powerful,” Orr added.
Katherine Jean, who is the head lawyer for the bar, said in a recent statement that the great majority of investigations begin when one person files a grievance alleging misconduct by another person. Complaints can be filed anonymously.
We have extensively blogged on the recent prosecutions described above.
Outside review of disciplinary activities is a healthy thing. The ABA provides for such review on request of a state high court.
The District of Columbia Court of Appeals has never, so far as I am aware. called for an ABA evaluation.
Hat tip: ABA Journal. (Mike Frisch)
Monday, February 8, 2016
A decision in a legal malpractice case from the New York Appellate Division for the First Judicial Department.
Plaintiff alleges that he would not have lost his contractual right to certain deferred compensation if his attorneys had not acted negligently in speaking to the Wall Street Journal, in violation of the non-disparagement provision of the contract. These allegations state a cause of action for legal malpractice (see Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP, 26 NY3d 40, 49-50 ). The documentary evidence submitted by defendants fails to establish a defense as a matter of law (see Leon v Martinez, 84 NY2d 83, 88 ). As the motion court found, neither the arbitration award nor the subsequent opinions submitted by defendants unequivocally contradict plaintiff's claim that, but for defendants' alleged negligent conduct, he would not have lost his contractual benefit. Moreover, it does not matter whether the arbitration decision was reached on the merits or under a procedural bar to considering the deferred compensation issue in the arbitration.
The Georgia Supreme Court has accepted a consented-to reprimand in a matter where he had failed to properly withdraw from representation of his secretary's ex-husband in debt matters while engaging in an intimate relationship with the secretary.
The facts show that Eddleman represented his secretary’s now-ex-husband in several credit card collection cases and did not charge a fee due to the client’s financial circumstances. Later, Eddleman insisted on being paid but could not agree with the client, so he considered himself discharged. He did not obtain an order allowing withdrawal in at least one of the cases, however, until February 2013. Thus, Eddleman was attorney of record in October 2012 when he represented his secretary in a divorce in which the parties’ financial interests necessarily were in conflict and relevant to the divorce action. He did not obtain written informed consent to the divorce representation from his secretary or her now ex-husband. In addition, Eddleman admits that he had a personal, intimate relationship with his secretary, now his wife, while the divorce action was pending, even though he was aware of this Court’s repeated admonitions against lawyers entering into extramarital relationships with clients, and admits he should not have ignored those admonitions.
The State Bar agreed with the sanction but noted
The State Bar offers in aggravation of discipline that Eddleman has received a Formal Letter of Admonition; that this matter involves multiple offenses; that his initial denial of the affair extended the proceedings; and it notes the inherently selfish nature of some of Eddleman’s conduct.
The court agreed that reprimand was appropriate on these facts. (Mike Frisch)
The North Carolina State Bar has filed a complaint alleging ethics violations in a number of matters on the part of a Wilmington attorney.
Count One alleges that the attorney improperly used estate funds and failed to honor the lien of the Wilmington Funeral & Crematory.
Count Two alleges that he robbed Peter (a slip and fall client) to pay Paul (not the same as Paypal) for the misuse of funds set forth in Count One.
There are other allegations of trust account malfeasance including writing an escrow check to "cash" with the notation "Dad loan repay." (Mike Frisch)
The Delaware Supreme Court has ordered a 21-month suspension retroactive to November 2014 of an attorney who fell asleep at the wheel while intoxicated and caused serious injuries to another driver.
Delaware online had the story of the crash.
The attorney was admitted in 2002 and made a partner of his firm in 2012.
He had transferred to disability inactive status as of November 2014 after the bar sought a suspension based on the conviction.
Although the attorney had a 2008 DUI, he had not recognized that the was an alcoholic until the incident here.
The report of the Board on Professional Responsibility (appended to the Court's opinion) tells the story of his late-blooming recognition of his condition and laudable steps in recovery.
Worth a read and maybe an assignment for a professional responsibility class on bar discipline. (Mike Frisch)
The New Mexico Court of Appeals has held that a broad arbitration agreement drafted by an attorney and signed by the client is enforceable if there is informed consent.
In 2006 Plaintiff Ray Castillo signed a document with a provision requiring him to arbitrate “any dispute” arising between him and his attorneys, who are now defendants in this case. The present lawsuit—alleging legal malpractice and related claims—can only proceed to a jury trial if, as a matter of contract, the arbitration clause does not apply, or if it is otherwise unenforceable.
An arbitration clause in a fee agreement between attorney and client implicates unique legal and ethical concerns that are presently being debated, with other jurisdictions taking varied approaches to enforceability..For the reasons discussed in this Opinion, we hold that the plain text of this unusually broad arbitration provision reasonably applies to Plaintiff’s malpractice claim, but that it is unenforceable if it was signed without Plaintiff’s informed consent. We reverse the district court’s decision compelling arbitration and remand for proceedings to determine the circumstances surrounding negotiation of the fee agreement.
The court on remand must determine whether the law firm explained the implications of the arbitration clause
If Defendants did not inform Plaintiff that the agreement constituted a waiver of important rights, including the right to a jury trial, potentially the right to broad discovery, and the right to an appeal on the merits, then Defendants’motion to compel arbitration should be denied.
Saturday, February 6, 2016
The Virgin Islands Supreme Court has reversed an order finding an attorney in contempt of court.
The attorney represented a mother whose children had been taken from her and was trying to get them back. The purported contempt came when the judge suggested that the attorney's client should readily submit to counseling.
The problem started when the judge
observ[ed] that “it seems so simple, just do the counseling.” (J.A. 64.) When [attorney] Walker was permitted to respond, the following dialogue ensued, as is reflected in the hearing transcript:
WALKER: I also take issue with the Court’s comment that it is very easy for [the mother] to attend these family sessions. She attended three sessions, one was on the phone, two were in person, and I believe two of them were with M.R. and [the counselor]. I think it’s easy for people to sit in this room and pass judgment on [the mother], and sit on the bench and drive a government car and remark as to what is easy for [the mother] to do. [The mother] is –
THE COURT: Attorney Walker –
WALKER: If I may be heard.
THE COURT: Attorney Walker, no, you may not be heard. Can you remove her from here right now.
(Thereupon, Attorney Walker returned to her seat at counsel table.)
THE COURT: Attorney Walker, I’d like you – for you to leave, please. You are being disrespectful to the Court.
WALKER: I’m not being disrespectful to the Court. You’re making remarks about my client that have nothing to do with the facts that have been made. For the Court to sit there and say that it’s easy –
THE COURT: Oh, marshal, please remove her.
WALKER: Not a problem.
THE COURT: I don’t know what car the Court drives has to do with this case. I just don’t understand. It’s very unprofessional and unnecessary.
WALKER: Then I have to file a motion to recuse you because you’re making comments about my client that are not in evidence.
(Thereupon, Attorney Walker was escorted out of the courtroom.)
The hearing resumed without counsel. Contempt proceedings were initiated later that day.
The court here
In its May 21, 2015 opinion, the Superior Court concluded that Walker obstructed the administration of justice by “arguing with the court in aggravated and elevated tones” and “by personally criticizing a judge in open court.” In re M.R., 62 V.I. at 408. We conclude that neither of these purported acts constitutes the obstruction of the administration of justice in this case...
First, we note that the transcript of the May 8, 2013 hearing, as prepared by the court reporter, does not reflect that Walker argued with the judge. Rather, it indicates that Walker immediately stopped speaking when the judge interrupted her, did not resume speaking again until the judge finished her remarks, ceased speaking when the judge interrupted her a second time, and then left the courtroom with the marshal when instructed to do so. (J.A. 72-73.) Although the record reflects that Walker denied the Superior Court’s charge that she was being disrespectful, merely objecting to or disagreeing with a judge and succinctly stating the reasons for the objection—without more, such as interrupting the judge or using profane language—cannot form the basis for a criminal contempt sanction..
The remark that the Superior Court characterizes as “criticizing a judge” also cannot constitute an obstruction to the administration of justice in this instance. To be sure, Walker’s remark that it is “easy for people to . . . sit on the bench and drive a government car and remark as to what is easy for [the mother] to do,” (J.A. 72), may well have offended the judge. However, the record contains no evidence that this comment was so disruptive that it posed “an imminent threat to the administration of justice” so as to justify “the offended judge being judge, jury and executioner.”
...Walker’s remark squarely constitutes zealous—although in this case, ineffective—advocacy that cannot form the basis for a criminal contempt conviction.
Indeed the problem lay elsewhere
In this case, to the extent any disruption occurred, it is attributable not to Walker, but to the Superior Court’s reaction to her advocacy. An attorney has the right to make a good-faith legal argument that a judge does not approve of in presenting his or her client’s case to a court. McConnell, 370 U.S. at 236. We can find no justification for the Superior Court to respond to Walker’s fleeting remark by ordering her immediate removal from the courtroom, leaving her client unrepresented in a quasi-criminal proceeding in which her fundamental liberty interest in the care, custody, and control of her children was at stake. See Troxel v. Granville, 530 U.S. 57, 65 (2000); In re R.S.N., 706 N.W.2d 705, 708 (Iowa 2005) (holding indigent parents are entitled to court-appointed counsel in involuntary termination of parent rights proceedings); In re Guardianship of Dotson, 367 A.2d 1160, 1163 (N.J. 1976) (“While it is denominated a civil matter, it is almost quasi-criminal in nature, since it seeks to terminate for cause all parental ties between the children here involved and their natural parents. . . . As such, it is deserving of special treatment.”); Particia C. Kussmann, Right of Indigent Parent to Appointed Counsel in Proceeding for Involuntary Termination of Parental Rights, 92 A.L.R.5th 379 (2001) (collecting cases). Thus, the Superior Court abused its discretion when it found Walker in criminal contempt to the extent the sanction is predicated on a finding that she obstructed the administration of justice...
In this case, Walker alleged—both orally and in writing— that the judge should recuse herself because criticism of that very judge formed the basis for the contempt charge, meaning that “the alleged victim” would simultaneously serve as “the investigator, the prosecutor, [and] the fact finder.”
Attorneys possess an obligation to advocate zealously for their clients, in good faith within the bounds of the law. On some occasions, this may entail making an argument that displeases a judge, or that a judge interprets—rightly or wrongly—as criticism. In this case, the Superior Court perceived as criticism what an attorney likely intended as advocacy, and imposed the severe sanction of criminal contempt. In doing so, it ignored the maxim that “the law gives [judges] as persons, or courts as institutions . . . no greater immunity from criticism than other persons or institutions.” Landmark Commc’ns, Inc. v. Virginia, 435 U.S. 829, 839 (1978). Accordingly, we reverse the Superior Court’s May 21, 2015 opinion and order adjudicating Walker in criminal contempt.
The court expressed the view that recusal is appropriate where the judge is the "victim" of the contempt.
The judge took the bench in 2013. (Mike Frisch)
Friday, February 5, 2016
Actual innocence need not be proven for a defendant to sue a criminal defense attorney for malpractice, according to a decision of the Iowa Supreme Court
In the present case, the plaintiff faults his former criminal defense attorneys for allowing him to plead guilty to a specific crime that lacked a factual basis. He sued the attorneys for malpractice, but the district court granted them summary judgment because the plaintiff could not show he was actually innocent of any offense that formed the basis for the underlying criminal case.
On our review, we decline to adopt proof of actual innocence as a separate prerequisite to recovery for legal malpractice against criminal defense attorneys. Instead, we believe judges and juries should take innocence or guilt into account in determining whether the traditional elements of a legal malpractice claim have been established. We therefore reverse and remand for further proceedings.
The court discusses the issue and concludes
we think the causation determination will frequently take into account the guilt or innocence of the client. And ultimately, we are not persuaded by the remaining public policy concerns other than causation. For example, while the notion that an individual should not "profit from participating in an illegal act" is a good general principle, Humphries, 712 S.E.2d at 800, it is too general to describe how our legal system actually operates. We do not bar criminal defendants who are guilty of their crimes from recovering overpayments from their criminal defense counsel, suing for clearly illegal searches, or suing the medical staff in the prison for medical malpractice. By analogy, a criminal defendant who is convicted of a crime due to legal malpractice, and gets that conviction set aside, should not be categorically barred from suing his or her former attorney just because the defendant may have been guilty of some lesser charge that would have resulted in a lower sentence.
Likewise, our legal malpractice precedents have not adopted the principle that "subsequent negligent conduct" by the attorney can be compared to the "culpability" of the client that required him to need legal services in the first place. See Wiley, 966 P.2d at 986; cf. Restatement (Third) § 54 cmt. d, at 404 (discussing the scope of comparative negligence in the context of legal malpractice and noting that "clients are entitled to rely on their lawyers to act with competence, diligence, honesty, and loyalty").
Further, the potential for "nuisance" suit did not alter the public policy analysis. (Mike Frisch)
The Iowa Supreme Court has privately admonished an attorney who sent an ex parte email to the judge reviewing an arbitration award of a county bar association.
His (non-frivolous) beef with the award was that his former attorney was the bar association president.
Dear Robert Hutchison:
Like I stated in my motion to expand and correct your pathetic ruling; I never communicated with you exparte until now. Because you choose to play fast and loose with your ethical responsibilities and irresponsible rulings please accept this as your first exparte communication from me.
The rest you unethical behavior you can explain to your judicial committee. You should be ashamed of yourself and I’m sure you have heard this before. Your shameless cover up for your circle of buddies will not go unaddressed. Hopefully I never have to deal with your arrogant unethical behavior again.
Have a nice holiday. FYI this isn’t a tactic I’ve used before but when observe unethical arrogant men who abuse their power I believe its important to call it as i see it just like now. In my book you’re no better than the convicted scum you sentence to jail several times a month.
Shame on you.
Judge Hutchison reported the email to the Iowa Supreme Court Attorney Disciplinary Board (Board).
The court on sanction
While Attorney Doe’s email was unprofessional, we do not believe a license suspension or a public reprimand is the appropriate sanction. However, had we found other properly charged and proven violations, a public sanction would be appropriate. Instead, we choose to privately admonish Attorney Doe. We do note that, while a private reprimand is not discipline, it serves as a warning and puts the attorney on notice that his or her behavior violates certain ethical requirements...Likewise, in imposing only a private admonition, we are in no way minimizing or condoning the unwarranted and unprofessional attack on a judicial officer.
From the web page of the Tennessee Supreme Court notes a decision to increase the length of an attorney's suspension.
The Supreme Court has decided to increase the punishment recommended by a hearing panel to discipline an attorney for sexual misconduct involving a client that he was appointed to represent in a criminal matter and for revealing confidential information of another client to a judge in a different matter.
Robert Vogel, a Knoxville attorney, received a one-year suspension of his law license from a hearing panel of the Board of Professional Responsibility, which oversees attorney discipline. Although the panel imposed the punishment along with several conditions, it agreed that only 30 days was to be served on active suspension, with the remainder to be served on probation. In reaching its decision only to impose 30 days of active suspension, the hearing panel relied upon a number of remedial actions Mr. Vogel undertook in response to his misconduct.
The Supreme Court found the proposed punishment inadequate and instead proposed the punishment be increased. The Court reviewed the case to determine whether the punishment imposed was uniform with prior disciplinary decisions and appropriate under the circumstances of this case. As part of its duty to regulate the practice of law in Tennessee, the Supreme Court bears “the ultimate responsibility for enforcing the rules governing the legal profession.”
While recognizing the same remedial actions noted by the hearing panel, the Court placed less emphasis on those mitigating factors. Instead, the Court focused more heavily on the fact that Mr. Vogel “failed to safeguard the trust of a vulnerable client and exploited his … role” as her attorney, particularly in light of the fact that the client faced serious federal criminal charges. The client was a young woman who continued to use drugs during Mr. Vogel’s representation of her, including during the time period of the multiple sexual encounters. The Court specifically noted that Mr. Vogel pressured the young woman to continue the sexual relationship even after she requested that it stop, and she reluctantly complied. The Court concluded that Mr. Vogel’s conduct represents “a serious violation of the Rules of Professional Conduct and warrants a one-year active suspension.”
Read the unanimous opinion in In re: Robert Lee Vogel, authored by Justice Jeffrey S. Bivins.
The sexual relationship was with a criminal client that he was appointed to represent
Mr. Vogel and Ms. Alford engaged in a sexual relationship during the course of Ms. Alford‘s employment at Mr. Vogel‘s law office. When asked how the relationship developed, Ms. Alford testified that she began ―feeling awkward‖ with Mr. Vogel from the beginning of the representation but that ―it wasn‘t until [Mr. Vogel] got into the new office that he  more approached [her] and would tell [her] don‘t let his feelings towards [her] interfere with him being [her] lawyer because he was just a man and stuff.‖ During her employment at Mr. Vogel‘s law office, Mr. Vogel would ―constantly call [her] into his office,‖ where he would pull her into a ―blind spot‖ between the doors and ask for a kiss. Ms. Alford acknowledged that, although she was not attracted to Mr. Vogel, she would kiss him.
Ms. Alford then described how the relationship progressed. Mr. Vogel would ask her to sit on his lap and to work until 8:00 p.m. Ms. Alford began working later hours, but she testified that ―it was just . . . so [Mr. Vogel] could hang out with [her] . . . because [she] wasn‘t doing much.‖ Nobody else would be present when she was in the office with Mr. Vogel after 5:00 p.m. When asked how she reacted when Mr. Vogel would ask for a kiss or for her to sit on his lap, Ms. Alford answered, ―I mean, I did it. I mean, I was submissive.‖ She did not express her reluctance to kiss Mr. Vogel or to sit on his lap because Mr. Vogel ―held [her] future in his hands.‖ Ms. Alford also noted that she was using drugs during that time. Ms. Alford testified that she and Mr. Vogel engaged in sexual intercourse on three occasions, each initiated by Mr. Vogel. The first and third sexual encounters took place in Mr. Vogel‘s office building in ―the middle bedroom in the upstairs at the back of the building,‖ and the second sexual encounter took place in Mr. Vogel‘s actual office. Each instance of sexual intercourse took place after working hours, and Ms. Alford did not think anybody else would be present in the office.
As to sanction the court noted evidence of a sex addiction but
Ms. Alford was, as the Panel described, a ―young, drug using, court-appointed client who was under federal indictment for drug related charges.‖ By making sexual advances towards Ms. Alford, engaging in a sexual relationship with her, pleading with her on one occasion to engage in a sexual relationship after she expressed her reluctance to do so, and continuing to serve as her attorney, Mr. Vogel failed to safeguard the trust of a vulnerable client and exploited his fiduciary role. This is particularly egregious in this case in light of the questionable consensual nature of the sexual relationship, given Ms. Alford‘s uncontroverted reluctance to continue to engage in sexual relations with Mr. Vogel. In our view, even in considering the mitigating circumstances in this case, Mr. Vogel‘s conduct represents a serious violation of the Rules of Professional Conduct and warrants a one-year active suspension.