Legal Profession Blog

On The McDonald Spit

A dispute between two attorneys who co-owned vacation property as tenants-in-common at a place on the McDonald Spit worked its way to a decision from the Alaska Supreme Court.  The attorneys did not have a written agreement concerning their respective ownership rights. One of the partners wanted to build a guest cabin in a particular place  "below the bluff." The other disagreed and felt the location was an unsafe place to build. He was proven correct when that cabin was destroyed. Thereafter, one partner built and used his own cabin while the other took over an existing cabin. The litigation was over the concept of "owelty" after the parties had partitioned their respective interests in the property and were unable to resolve their disagreement through mediation. (Mike Frisch)

AALS Section on Professional Responsibility: Spring 08 Newsletter

Through the good offices of it general editor, Randy Lee at Widener, and many others in the AALS Section on Professional Responsibility, here is their highly useful, newly printed section newsletter for spr. 2008: Download AALS-News.Spring2008.pdf .  It includes case law and scholarship summaries, ethics rule changes in various states, section and school announcements, a message from the chair, and future symposia.  Our blog and other fans of the section cannot thank them enough for letting us post it here.  [Alan Childress]

Where There's A Will

The Indiana Supreme Court suspended an attorney for "at least three years" for a number of ethical violations in two matters. He had represented an elderly client who wished to name the lawyer as a beneficiary in his will. The lawyer had another lawyer friend draft the will, in which he was primary beneficiary and his son was contingent beneficiary.  A week later, he sought to be named the guardian of the client, and was appointed. The client then retained other counsel and challenged the guardianship. The lawyer was an adverse party in that proceeding.

In a second matter, an incarcerated client told the lawyer about $20,000 that was not discovered in a search that had resulted in the seizure of 100 pounds of marijuana (as opposed to a hundred pounds of clay) and a substantial amount of cash. The attorney found the money and deposited it into his personal account. He arranged for the client to transfer ownership of his condo to pay legal fees. He later refused to return ownership to the client.

In imposing a sanction, the court noted prior discipline that included an 18 month suspension for filing a false federal tax return and a lack of recognition of wrongdoing. A dissent notes the same factors and would disbar. (Mike Frisch)

Dysfunctional Family

The Louisiana Attorney Disciplinary Board has recommended a suspension of one year, with all but three months suspended and unsupervised probation for nine months where an attorney had filed a defamation suit against his sister (and former client) and thereafter agreed to dismiss on conditions that included her not bringing further ethics complaints against him. He also sought a $15,000 penalty per future complaint.

The lawyer had represented his sister in a number of civil matters. She began filing bar grievances in 1994. No discipline was imposed as a result. She sought review of the dismissals to no avail. He filed suit in 2003 claiming, among other things, that the bar complaints were defamatory. The settlement proposals at issue here came after mediation had failed. The defamation claims were found to be frivolous and to have violated Rule 8.4(d) because of the "chilling effect" on the disciplinary process.

The Board concluded:

In this case, the Respondent has violated duties owed to the legal system and to his client, Ms. Raspanti. Notwithstanding the clear and unequivocal prohibition in Section 12(A), Respondent proceeded to file a defamation action against Ms. Raspanti based upon the complaints she filed with ODC relating to Respondent's alleged misconduct. Respondent's vigorously pursued his claim. He amended his suit three (3) times in an effort to establish his claims. Respondent refused to dismiss his defamation claims, despite opposing counsel's assertion that the claims were barred under Section 12(A). Ms. Raspanti was harmed by Respondent's actions as she was forced to defend the defamation claims. Moreover, Respondent's retaliatory action threatens to undermine the disciplinary system with its potential "chilling effect" upon a client's willingness to file a complaint with ODC. Aggravating factors include Respondent's refusal to acknowledge the wrongful nature of his conduct, lack of remorse, substantial experience in the practice of law, and indifference to making restitution or minimizing the harmful affects of his misconduct. Mitigating factors include no prior disciplinary record.

The Board further concluded that the hearing committee's proposed public reprimand was an insufficient sanction for the misconduct. (Mike Frisch)

Schindler's List Of Violations

I have recently discovered the California Bar Journal as a source of interesting disciplinary matters. Here's their summary of a recent disbarment of a lawyer located in Michigan for an array of serious ethical lapses:

In a default proceeding, the State Bar Court found that Schindler’s conduct in two client matters in Michigan, for which he was disciplined, warranted   his disbarment here. In one matter, he violated 10 Michigan court rules and   Rules of Professional Conduct and was suspended for nine months. They were the equivalent of three California rules: showing respect to the courts, moral   turpitude and unauthorized practice.

While suspended for not paying Michigan bar dues, Schindler appeared at a  hearing and told the court he was not suspended and that he had paid his dues.   Because he had previously made a court appearance while suspended for non-payment,   the court continued the hearing and ordered Schindler to provide a copy of   his dues receipt and a letter from the bar stating that he was licensed to   practice. He did not do so and paid his dues four days later.

He then told the Michigan Attorney Grievance Commission that he had called   the court to say he had complied with its orders when in fact he had not paid   his dues.

In the second matter, Schindler was charged with misconduct in nine separate   counts. Three involved his failure to participate in the Michigan bar’s   investigation of his misconduct. The remaining cases addressed misconduct involving   clients. For example, he did not file a lawsuit or refund a $500 retainer to   one client.

He misappropriated $12,500 from a couple he represented in foreclosure proceedings.   They lost their home. A probate client who loaned Schindler $10,000 obtained   a default judgment against him when he did not repay the loan. He abandoned another client who hired him to handle a child custody matter. Although he   filed a motion in that matter, he did no further work, even though the client  was facing jail time.

In recommending his disbarment, Judge Richard Platel pointed to Schindler’s   lies to both the Michigan grievance commission and his clients as well as his   misappropriation and acts of moral turpitude. The misconduct findings, Platel wrote, “clearly support disbarment.”

It is also worth noting that many of the California cases use the "moral turpitude" label that most jurisdictions have abandoned. We still consider moral turpitude in the District of Columbia due to a statute that mandates disbarment for a criminal conviction involving moral turpitude, as we discussed in the Scooter Libby D. C. disbarment case. (Mike Frisch)

Boston Herald Apologizes For Wrong Spygate Story on Rams' Taping

So the headlines say. Am I the only one who is reminded of Deep Throat in the parking garage?

You let [Belichick] slip away... You've done worse than let [Belichick] slip away, you've got people feeling sorry for him, I didn't think that was possible. In a conspiracy like this, you build from the outer edges and you go step by step, if you shoot too high and miss, everyone feels more secure. You've set the investigation back months.

But I am infuriated that with all the ethics investigations by Congress that could be done, Arlen Specter intends to pursue this one, after the NFL has already issued its punishment.  At least he is known for his unimpeachable work on the Warren Commission; given the NFL's new stance against long hair down the back obscuring players' numbers [to hide defensive signal receivers???], I can already imagine Belichick coming up with the "magic mullet" theory to explain everything to Specter's satisfaction. [Alan Childress]

New Edition Book of ABA's Model Rules Is Announced

In an email sent around today, the American Bar Association announced its publication of the 2008 Edition of the Model Rules of Professional Conduct, with the MR Comments included, for $19.95 (or $14.95 for section members, and also discounted for student members). 

It is the "centennial edition" because: "On August 27, 1908, at a meeting in Seattle, Washington, the American Bar Association adopted the Canons of Professional Ethics, the first set of model standards of ethical conduct for lawyers nationwide." 

I am assigning this one for my "The Legal Profession" ethics class in the fall (with a full casebook too, of course, that also discusses many of the pre-2002 MR and also the Model Code), because it is quite cheap for the students and has most of what I intend to use from a rules supplement anyway. 

[Alan Childress]

Miracle Whip Makes A Great Proxy Demographic

I grew up on Miracle Whip.  Miracle Whip on sandwiches.  Miracle Whip on bananas, called "a salad."  On peanut butter.  On peanut butter and banana sandwiches.  It tastes (I eventually realized) actually vile, despite being a combination of two normally-fantastic paired food groups--not-fully-liquefied fat, and sugar.  I propose, though, that MSNBC start using its consumers as a demographic less in-your-face than the ones they use now to chart the die-hard Hillary supporters.  Or CNN could break out pie charts of how Hillary just killed with the Michael Bolton/Kenny G subpopulation, though this hardly separates them from MSNBC if in fact those performers are the musical equivalent of Miracle Whip. Maybe we should just junk all racial and gender groupings and just admit that those who clap along on the on-rhythm vote for Hillary and those who clap on the off-rhythm vote for Barack.

You know, it is quite possible for Democrats who happen to be white males to support Obama, just as it is a fact, lost on the pundits, that many many supporters of Hillary Clinton are from all over the sweety fat spectrum.  I have not seen this much segregated media profiling since those market-targeted McDonald's commercials.  [Alan Childress]

A Poor Choice Of Words

From the California Bar Journal comes the following story:

The State Bar Court found that Torres violated one of the probation conditions imposed on him in an earlier disciplinary case by failing to file five quarterly probation reports and that he committed acts of moral turpitude when he deliberately engaged in the unauthorized practice of law.

Torres originally was disciplined in 2000 for committing acts of moral turpitude by harassing a client and inflicting emotional distress on her. In that matter, a review department opinion painted “a sordid picture of an attorney who maliciously and gratuitously oppressed, harassed and intentionally inflicted emotional distress on a female client,” wrote Judge Pat McElroy, who recommended Torres’ disbarment.

McElroy also found that Torres engaged in multiple acts of misconduct, engaged in the unauthorized practice of law while on probation and engaged in abusive conduct, calling one bar employee a “fat bitch” and another a “f______ a______.”

There was no evidence of mitigating circumstances in the record.

(Mike Frisch)

Law Firm Marketing

A section of the District of Columbia Bar is sponsoring a session on law firm marketing on May 20. The blurb from the bar's web page states:

The program is premised on the growing number of law firms that are starting to see the long-term benefits of tapping into their alumni network and maintaining good relations with attorneys who leave. Law firms realize the importance of having well-placed alumni who can help recruit for and promote their firms as well as provide opportunities for business referrals.

Participants of this program will learn about what law firms are doing to assist and stay connected to their alumni at all career stages—associates who do not make partner, associates who choose to practice law in another environment, partners who no longer fit in the firm’s long-term plans, and attorneys who pursue alternative career paths.

(Mike Frisch)

Equitable Subrogation

The Indiana Supreme Court held that the Court of Appeals properly concluded that an excess insurer  may not bring an action for legal malpractice against the insured's attorneys: "Emphasizing the paramount importance of a lawyer's duties of client loyalty and maintaining client confidentiality, the court [of appeals] considers Indiana decisions concerning the doctrine of equitable subrogation and the prohibtion against assignment of legal claims...We find the analysis and conclusion of the Court of Appeals to be sound and proper."

A dissent would allow the insurer to bring the action "without access to any confidential client information of any kind whatsoever. But I would not close the courthouse door to an insurance company that is willling and able to do so. " (Mike Frisch)

Can't Be Bothered

A hearing committee in Louisiana has recommended a two-year suspension of an attorney who accepted a bankruptcy matter and abandoned the practice of law. Of particular note is the attorney's attitude toward the bar disciplinary process:

While attempting to serve the Respondent, the Office of the Disciplinary Counsel investigator...spoke with Respondent's wife, who advised the investigator that she had spoken to her husband and that he did not wish to cooperate with the Office of the Disciplinary Counsel and that he would not be meeting with the office. The Respondent's wife also advised that the Respondent no longer wished to be bothered with anything the Office of the Disciplinary Counsel needed from him.

(Mike Frisch)

Recovery Prevents Disbarment

The Louisiana Supreme Court imposed a three-year suspension nunc pro tunc to 2000 (when the attorney had been placed on disability inactive status) in a case involving multiple instances of misconduct that the attorney "largely admitted..." as mitigation, the attorney claimed that the misconduct had occurred during a period of substance abuse for which he has been treated and achieved sobriety. the court concluded that a downward departure from the baseline sanction of disbarment was appropriate:

The record indicates that in 1993, respondent realized he was suffering from a grave disability in the form of an addiction to drugs and alcohol. Respondent requested that this court transfer him to disability inactive status and he thereafter admitted himself to a long-term substance abuse treatment facility. Since being admitted to treatment, respondent has achieved and maintained sobriety. He has demonstrated a cooperative attitude during these proceedings and is remorseful for the harm caused by his addiction. Respondent also has an excellent reputation in the legal community and in the community at large, as evidenced by the compelling character testimony offered on his behalf before the hearing committee.

One notable fact is that there was no medical testimony offered to prove a causal connection between the addiction and misconduct. Rather, "the committee accepted [the attorney's] belief that his chemical dependency was the cause of the misconduct." Many courts would require expert testimony on addiction and causation to treat it as a mitigation factor. Here, the result seems appropriate as the attorney has been suspended for over seven years and demonstated substantial rehabilitation. (Mike Frisch)

Lubet on Honesty and Lawyers, With Real-Life Examples

Posted by Alan Childress

Steven Lubet (Northwestern) has just published his NYU Press book, The Importance of Being Honest: How Lying, Secrecy, and Hypocrisy Collide with Truth in Law.  Here is an initial review from Publishers' Weekly:  

Lubet, a law professor at Northwestern (Lawyers Poker: 52 Lessons That Lawyers Can Learn from Card Players) tackles a series of subtle and thorny ethical questions that lawyers and judges face each day. These questions can challenge their integrity, determine their effectiveness and affect how the public views the legal profession. Lubet chooses a few notorious examples to showcase his points, such as the ethical questions raised by Supreme Court Justice Scalia's duck-hunting trip with Vice President Cheney (should the justice have recused himself in Sierra Club v. Cheney?) and Bill Clinton's infamous Monica Lewinsky deposition (did he lie to his lawyer?).

Many of Lubet's examples are about less public conundrums, such as what lawyers should do if they make a mistake and the problem of judicial bullies. Lubet's central concern, which he mines adeptly, is with actions that are arguably legal but may also be strategically or morally wrong. Lubet's writing is a great strength: straightforward, funny, intelligent and devoid of legalese. Like a good color analyst, he conveys an insider's knowledge in an entertaining and informative way.

I am also looking forward to the expert comments on the book which David McGowan promises on Legal Ethics Forum.

Split Sanction Proposed

The Illinois Review Board has recommended a two-year suspension with the second year stayed in favor of probation in a case where the lawyer had neglected an appeal, forged a child support order and other court documents, and had been convicted of attempted obstruction of justice and attempted forgery in two separate cases.  The Administrator (i.e. Bar Counsel) had sought a three-year suspension without a stay for probation. Mitigation evidence was presented that the lawyer's wife had a history of mental illness and had set the family home on fire. Medical evidence established that the lawyer had a history of panic disorder and personality disorder but that the misconduct "was volitional and within his conscious control."

In rejecting the arguments in favor of more severe discipline, the Review Board concluded:

Laz's misconduct was serious, but we also consider the evidence in mitigation, including the lack of prior discipline, favorable testimony about Laz's character from two respected judges and an attorney, and the Hearing Board's finding that personal gain was not the motivation for Laz's misconduct. After considering these and all of the relevant circumstances, we recommend that Laz's license to practice law be suspended for two years, with the suspension stayed after one year subject to conditional probation.

Last, we note that counsel for the Administrator argues for the first time in her reply brief that the Review Board should take judicial notice of the fact that a new disciplinary complaint has been filed against Laz (In re Laz, No. 07 CH 121, complaint filed Dec. 12, 2007) as evidence of a propensity to commit further misconduct. While we may take judicial notice of the public records of the Commission (In re Owen, 144 Ill.2d 372, 378-79, 581 N.E.2d 633 (1991)), it would be unfair to give any consideration to the newly filed complaint because the issue was not raised until the reply brief, and Laz has had no opportunity to respond. Moreover, there has been no proof of the new charges. We will not use unproven allegations as a basis for our sanction recommendation.

I'm not sure I agree with that last part. I would think that, rather than forward a probation recommendation with fresh charges pending, it might be prudent to hold the disposition until all pending charges are adjudicated. On the other hand, if the recommendation is adopted, the attorney will be suspended while the new charges work their way through the system. (Mike Frisch)

Evidence Excluded

The South Carolina Supreme Court suspended an attorney for six months for misconduct in connection with the settlement of a personal injury claim. The attorney had settled the case without advising the client, signed the client's and her husband's name to the release and collected his fee without disbursing the client's share. The client fired the lawyer and learned about the settlement when she retained new counsel.

The accused lawyer sought but was not permitted to submit evidence concerning successor counsel. The court found no error in the exclusion of that evidence:

At the start of the hearing, Respondent’s counsel indicated that he intended to call Witness B, a former client of Attorney’s and a member of Respondent’s office staff who was also his client.  According to Respondent’s counsel, Witness B was to testify regarding the “bad blood” that existed between Respondent and Attorney prior to the Client matter.  Counsel also intended to elicit testimony from Witness B regarding a grievance she had filed against Attorney.  Disciplinary counsel objected to the admission of this testimony on the ground it was irrelevant to a determination of Respondent’s alleged misconduct.  After hearing arguments from counsel, the Panel ruled that Respondent’s counsel could not present any testimony regarding a grievance against Attorney and needed to limit the testimony to only the interactions between Attorney and Respondent regarding the Client matter.

The court rejected the 90 day suspension proposed by the panel below as unduly lenient. (Mike Frisch)

A Fair Result

An attorney who had fabricated documents and made false statements in response to a bar investigation of an overdraft of a $750 trust account check was suspended on consent for two years by the Pennsylvania Supreme Court. There was mitigating evidence including remorse, lack of practice experience, voluntary closing of law practice and cooperation "evidenced by [the attorney's] voluntary decision to enter into consent discipline.

This strikes me as a good example of the value of consent discipline. The sanction is swift and sure without consuming limited disciplinary resources. The lawyer cannot resume practice without demonstrating substantial rehabilitation and is spared the humiliation of disbarment. Credit is given for cooperation and recognition of wrongdoing. In all, a responsible exercise of discretion by the disciplinary system. (Mike Frisch)

"I Am A Merciless SOB"

The Maryland Court of Appeals suspended a judge of the District Court for 30 days without pay who "had used profanity in the courtroom, made comments that manifested bias towards particular groups, disparaged the Judiciary, insulted defendants, and manifested a lack of courtesy, patience and dignity..." Samples: "What's the big rush to get back to Pennsylvania? It's an ugly state." After a woman took a crying baby out of the courtroom: "If she only knew how much I hate kids, she would not have brought that kid in here today." When a defendant pleaded not guilty: "Would you like some cheese with that whine because I've heard about all I wish to hear." In response to a plea for mercy: "I don't have any mercy. You haven't heard about me? I am a merciless SOB." To other defendants: "Well Mr. Jones, the hits keep coming. I mean, if there is a pile of shit there you'll step in it..." and "Ma'am, you can't bullshit a bullshitter..." He also made comments suggesting that Circuit Court judges don't work after lunch.

The court concluded that "[u]se of vulgar language erodes public trust and confidence in the Judiciary...Trust and confidence is undermined when a judge disparages and undermines fellow members of the judicial system." (Mike Frisch)

Magistrate Reprimanded, Suspended Until Retirement

The South Carolina Supreme Court issued a public reprimand and prohibited a magistrate judge from seeking or accepting a future judicial position "without the express permission of the Supreme Court." The court accepted the magistrate judge's offer to retire and placed him on interim suspension until his retirement.

He was found to have proposed and encouraged a clerk to videotape herself engaged in sexual relations with another magistrate and to have used the term "niggers" in a conversation with another clerk referring to men that another clerk was possibly dating. As a result of the second allegation, a clerk wrote a letter to the NAACP, which had resulted in adverse publicity for the judge and his magistrate's office. Other charges were not sustained.

Initially, an investigative panel had dismissed the charges. The magistrate advised his fellow magistrates that he had been cleared and that he hads passed a polygraph test (the results of which were later determined to be inaccurate). the complaining clerks were fired by a vote of the county magistrates. However:

After the meeting on January 5, 2004, several magistrates talked amongst themselves and reported having misgivings about the actions taken.  It was discussed that respondent may not have accurately described the circumstances surrounding the polygraph test.  Furthermore, on January 6, 2004, a state senator sent a letter to the chief magistrate judge indicating his understanding that the reasons given for the magistrates’ actions were not justified, and he encouraged the court to take immediate action to reinstate the three employees.  The magistrates met again on January 8, 2004, and voted to reinstate all of the employees.

The panel that heard these allegations found the hearing testimony of the magistrate "was not credible or believable." (Mike Frisch)

Bad Advice Leads To Reprimand

The Maine Board of Bar Overseers imposed a reprimand as an agreed sanction where the attorney gave incorrect legal advice in a bankruptcy matter concerning the correct listing of a $4,000 debt that the client had been ordered to pay his ex-wife for her attorney fees. As a result, the client wrongly thought the debt discharged and did not make payments. The client was found in contempt and incurred interst and attorney fees totalling $1,850.  The attorney admitted he had "fail[ed] to use reasonable care and skill and his best judgment by giving improper legal advice..." (Mike Frisch)

"Your Mother..."

The Louisiana Attorney Discipline Board has just updated its web page, which explains the number of bar discipline cases we have posted today from that jurisdiction. Here is a hearing committee report involving opposing counsel who were prosecuted together as a result of contempt citations. During a proceeding in open court, one lawyer called the other a "jackass." Opposing counsel responded  "Your mother is a jackass." There followed what is characterized as a "short altercation." Both were sentenced to a short term of imprisonment. The one who was found to have initiated the altercation got a 30 day suspended suspension; the other got a public reprimand. (Mike Frisch)

"Not A Wise Move"

In a very interesting opinion, a hearing committee of the Louisiana Attorney Discipline Board has recommended the reinstatement of an attorney who had been suspended for three years for misconduct that had taken place in connection with two nation wide class action cases. The misconduct involved pressing frivolous claims and false statements under oath.

The main stumbling block to reinstatement was a civil suit filed in federal court by the attorney against Chief disciplinary Counsel, the Board and the Supreme Court  claiming that he had been selectively prosecuted based on his foriegn origin and religious faith. The suit was dismissed on the grounds of sovereign and absolute prosecutorial authority. The dismissal was affirmed on appeal. The committee felt that the suit "was not a wise move" but that it did not establish conclusive evidence against reinstatement. He "did have a right to seek redress in the courts."

Keep an eye on this one--not many suspended lawyers who sue the disciplinary system get reinstated." (Mike Frisch)

Conditional Bar Admission

The Louisiana Supreme Court ordered that an applicant for bar admission be conditionally admitted for a three-year period. The applicant must provide quarterly reports of his steps to establish financial responsibility throughout the period of the conditional admission. We can look for such admissions to be a trend for the future in light of the ABA's endorsement of such forms of admission, as reported in a recent article in the ABA Journal. (Mike Frisch)

Opinion Not Defamatory

The New York Appellate Division for the Second Judicial Department affirmed an order dismissing a complaint alleging defamation brought by the former office manager of a law firm. The statements at issue were made to the former employee's insurance company that was processing a no-fault benefits claim as a result of a car accident. Expression of an opinion is not actionable:

Here, the defendants demonstrated their entitlement to summary judgment by establishing that the communication at issue, which amounted to a subjective characterization of the plaintiff's behavior and an evaluation of her job performance, constituted a nonactionable expression of opinion.

(Mike Frisch)

No CLE, No License To Practice

The Pennsylvania Supreme Court accepted a proposed consent disposition and suspended an attorney for 18 months. The attorney had been transferred to inactive status in 2000 for failure to comply with continuing legal education obligations and failure to comply with procedures required of such attorneys. He then had engaged in the unauthorized practice of law in several matters. (Mike Frisch)

Buying Drugs From Client Leads To Disbarment

The Kansas Supreme Court disbarred an attorney based on findings of multiple disciplinary rule violations, which stemmed from his purchase of marijuana from a client on 10-15 occasions. The conduct was found to have involved a conflict of interest and assisting the client in committing a criminal offense. (Mike Frisch)

Expert Testimony Required

The Kansas Supreme Court affirmed the dismissal of a legal malpractice claim brought by a convicted defendant against his retained counsel. The client was arrested driving a truck that contained more than 3000 pounds of marijuana. He denied knowledge of the drugs but pleaded guilty on the attorney's advice. He claimed that the attorney "spent less than 1 hour with him prior to the disposition of his criminal case." He was allowed to withdraw his plea on a finding of ineffective assistance of counsel and got diversion after serving the sentence. A disciplinary investigation "determined that none of [the lawyer's] actions rose to the level of professional misconduct."

The absence of expert testimony was fatal to the malpractice claim:

The two issues [the client] raised involved matters outside the common knowledge of a lay person. The intricacies of the interplay between state and federal jurisdiction, the customs of a particular court, and the federal law surrounding immigration and deportation are all specialized areas of the law about which a lay juror would not know. Accordingly, we do not believe there was any way Singh could prove deviation from the standard of care without the use of expert witness testimony. The district court properly granted [the attorney's] motion for summary judgment on that issue.

(Mike Frisch)

Conviction Reversed As Result Of Improper Argument

The New York Appellate Division for the First Judicial Department vacated a criminal conviction for what it characterized as egregious misconduct by the prosecutor in closing argument:

A reading of the excerpted text from the People's summation clearly illustrates that [acting as an unsworn witness] was what the prosecutor did in this case, except to a more egregious degree. In this case, where two witnesses, both appearing for the prosecution, offered conflicting, contradictory statements about what had happened during the taking of photographs from the observation post, it was obviously defense counsel's duty to draw attention to the inconsistencies. Moreover, defense counsel correctly suggested that, because only one of the statements could be true, one of the witnesses was possibly committing perjury. Further, knowing that the same issue of whether Police Officer Jeselson was in a position to witness the defendant handing the codefendant drugs in exchange for money had led to a mistrial the first time around, it was entirely reasonable for defense counsel to suggest that if perjury was being committed then the police officer had more to gain from it. In turn, this placed the prosecutor at center stage, since he was one of the parties present at the photographic session.

The prosecutor did not deny this. Indeed, he responded to defendant's comments by noting that any impropriety which purportedly occurred during this incident necessarily occurred in front of him, given his presence, but that his very presence made any impropriety unlikely. He also suggested that if he were to prosecute a case, where that type of misconduct had taken place, he should be fired. Further, the prosecutor said he had no explanation for the discrepancy, other than that Badger was mistaken.

On appeal, the People concede that the prosecutor vouched for Officer Jeselson, and that there are virtually no cases in which summation remarks, like those in this case, are made by an Assistant District Attorney. Nevertheless, the People argue that the prosecutor's summation was a necessary response to "a very personal defense attack" and that the prosecutor could not just "roll over" without reply.

A dissent disagrees (as dissents usually do):

A claim of prosecutorial misconduct on account of certain statements made by the prosecutor on summation is the principal issue presented on this appeal. I would affirm as I believe the prosecutor responded in a restrained manner to a reprehensible and unsupported personal attack on his integrity by defense counsel.

(Mike Frisch)

Relation Back

A legal malpractice case was filed against a firm that had defended a worker's comp case on behalf of an insurance company. An amernded complaint was filed and served that substituted the insurance company as party plaintiff based on a cliamed assignment of claims from the original plaintiff, the third-party administrator. The trial court held that the amended complaint was barred by the statute of limitations and granted sumary judgment.  The insurance company appealed the order of dismissal.

The Mississippi Supreme Court reversed, holding that there was a genuine issue of material fact whether the claims in the amended complaint were the same or seperate from the original complaint. If the claims are not seperate, the relation back doctrine applies and saves the civil action. (Mike Frisch)

Choice Of Disciplinary Law

The Massachusetts Supreme Judicial Court has proposed amendments to its Rule 8.5, governing choice of law in the application of rules of professional conduct. Noting that there is no completely satisfactory solution to choice of ethics law so long as there are state variations of the rules, the court states:

The proposed Rule goes on to follow the principle set forth in the current version of Model Rule 8.5(b) that recognizes that a lawyer's practice in 2008 may primarily affect the interests of another jurisdiction. Following a proviso in the ABA Model Rule, the proposal states that if "the predominant effect of the lawyer's conduct is clearly in another jurisdiction, then the rules of that other jurisdiction shall apply." The focus here is not on the jurisdiction where the lawyer's conduct occurs but on the jurisdiction where the primary effect of that conduct occurs. The formulation of this condition recognizes that the public policy interests of a lawyer's conduct may be so concentrated in another jurisdiction that that jurisdiction's professional responsibility rules should govern the lawyer's conduct. In like manner, Massachusetts professional responsibility rules might well govern the conduct of a State A lawyer who receives confidential information from a client about an impending crime, fraud, or environmental disaster in Massachusetts when State A has adopted Model Rule 8.5(b).

As the example from the above excerpt suggests, the choice of law issue may present itself in evaluating the appropriate response to client fraud. This is an area where the state bar rules vary in significant ways. (Mike Frisch)

Proposed Sanction Deemed Insufficient

The Iowa Supreme Court rejected the proposed six-month suspension recommended by its Grievance Commission and imposed a two-year suspension for neglect, failure to provide an accounting and return personal papers of a client and failure to cooperate with the isciplinary investigation. The court reviews attorney discipline matters de novo. While a six-month suspension is within the range of appropriate sanctions for neglect of legal matters, the attorney had a record of prior discipline and the additional violations. The attorney had indicated that he has no plan to resume the practice of law. (Mike Frisch)

Threat Of Litigation Not A Criminal Offense

In an appeal of a conviction for extortion, the Maryland Court of Appeals held a threat to pursue a legal action unless a settlement payment is made does not constitute extortion by wrongful threat of economic harm. The court's summary of its holding states;

There are no criminal sanctions for the initiation or continuation of frivolous civil actions under Maryland law; therefore, a threat to litigate a meritless cause of action cannot constitute a "wrongful" act under Maryland law.

The defendant had accused another person by letter of "stealing $22,000 from him and demanded damages plus interest compounded at nine percent." The letter was addressed to "you filthy [expletives] and is quoted in full in the opinion: "We have taken the liberty of redacting the profanity contained in the letter." The defendant had been an employee of the recipient and was convicted of embezzlement of company funds. The sender "waited 20 years to write this letter. It was December 24, 1984, almost exactly 20 years ago, when you froze my bank accounts, ruined my Christmas with my family, and started a process that would put me in prison for 17 years."

While the addressee never got the letter, a copy had been sent to his attorney ("I'm sending a copy of this letter to [the lawyer]. I may sue him too for being a [expletive] piece of [expletive]." The lawyer brought to matter to the attention of law enforcement authorities. (Mike Frisch)

Unwanted Contact Leads To Disbarment

The Kansas Supreme Court accepted an attorney's license surrender and ordered disbarment. The Court briefly summarized the pending charges as follows:

  At the time the respondent surrendered his license, review was pending before the Kansas Supreme Court on the final hearing report in accordance with Supreme Court Rule 212 (2007 Kan. Ct. R. Annot. 317).  The hearing panel found that the respondent engaged in a conflict of interest when he continued to represent a juvenile after he had inappropriate and unwanted social contact with the mother of the client, failed to provide a timely written response to the Disciplinary Administrator concerning the initial complaint, and engaged in other conduct that adversely reflected on the respondent's fitness to practice law.

  Additionally, at the time review was pending before the court, a complaint was pending that alleged [the attorney] engaged in similar inappropriate and unwanted social conduct with another female client.

(Mike Frisch)

Taking Unearned Fees Leads To Criminal Conviction

The Illinois ARDC has filed a complaint alleging that an attorney had accepted fees in five matters when he was aware of a recommendation of a two-year suspension and a pending petition for interim suspension. He failed to perform the services and failed to refund the unearned fees. Here, the story takes an unusual turn--criminal charges were brought that resulted in a conviction and 90 day jail sentence followed by two-years of probation. The total fees were slightly under $20,000. It is further alleged that, as of the time that the charges were filed, no restitution has been paid.

Kudos to the criminal prosecutor. I don't imagine that a case like this would attract the attention of many prosecutors around the country as a theft or taking under false pretenses case. I have a memory (which may be failing with advancing age) from my bar counsel days of being told by an AUSA in D.C. that their office wasn't interested in cases of attorney theft involving less than $100,000. Perhaps a form of professional courtesy? (Mike Frisch)

Varmint Hunt Turns Dangerous

Not a legal profession case, but of interest to torts profs is a decision issued yesterday by the South Dakota Supreme Court. A rifle had been left in an automobile after a day of hunting for "varmints such as coyote or fox." On the next day, while the car's ignition was turned on, the rifle accidentally discharged and wounded one of the hunters. The issue is whether the accident was covered by the insurance policy on the car. A majority answered that question in the affirmative, with a dissent suggesting that this does not fit into any sensible definition of a car accident. (Mike Frisch)

Second Chance

An attorney who had been placed on disciplinary probation was found to have violated the probation terms in several respects. The sanction? A sixty-day suspension. However, if the lawyer provides a current address within 14 days, the suspension will be stayed. The Minnesota Supreme Court further ordered that the attorney only practice under the supervision of another Minnesota lawyer and participate in mental health counseling. (Mike Frisch)

Excessive Fee Allegations

The Illinois ARDC recently filed charges that allege that an attorney had claimed excessive fees and breached his fiduciary duties by charging an estate valued at approximately $1.4 million over $212,000 in fees. He also is alleged to have violated the same rules in charging over $100,000 in fees to a related estate. The complaint sets out the bills in some detail. Highlights: "travel to house for leak in basement (crawl), fix and go through file cabinet" 5 hours, "obtain mail and statements, travel to Napierville post office for missing mail" 5 hours, "travel to court to determine any filings" 3.5 hours. (Mike Frisch)

Excessive Sanctions Overturned

The Oklahoma Supreme Court held that sanctions were improperly imposed against an attorney who had violated confidentiality provisions of the Mediation Act by disclosing protected information in a pleading. The court concluded:

The passenger's counsel did not disclose the settlement offer before a jury or even to Judge Lucas, who was presiding over the trial. He made the offending disclosure in a motion for sanctions filed with Judge Hetherington. His disclosure could not possibly have affected the insurer's liability on the underlying claim. While Judge Hetherington did conduct a hearing on the parties' motions for sanctions, the passenger was never given an opportunity to withdraw or amend his motion for sanctions. Imposition of sanctions under these circumstances was premature and excessive. Because the trial court had no authority to sanction the passenger's counsel under §2011(C)(a) and an order of sanctions under the circumstances of the cause was an excessive extension of the trial court's inherent powers, the trial court abused its discretion by sanctioning the passenger's counsel.

The sanction was $2500. The case arose out of an intersection collision. (Mike Frisch)

Judges Can Be Parents Too

A part-time judge may properly participate in a parent's group organized to express concern about the administration of a test to school children, one of whom is the judge's child. The South Carolina Advisory Committee on Standards of Judicial Conduct opines that such participation does not involve the misuse of judicial office. However, the committee expresses no opinion on whether the judge can be fired for his involvement in the parent's group. (Mike Frisch)

DC Judge Suing Over Lost Job After His Infamous 67.3M Dry Cleaning Suit

Roy Pearson's latest lawsuit story is on several blogs, but the best reader comment I have seen is on Overlawyered, which this morning reported the million dollar employment suit.  The reader Tom T. asks, "Only $1 million? Doesn't that mean his job was worth less to him than his pants?" 

Our prior post on his original April 2007 lawsuit is here (also noting the error [which seems to be repeated in the latest stories] that Pearson demanded merely 54 million or 62.2 in some versions).  In any event, it just has to be said that this guy has more pants suits than . . . well, you can finish that line yourself.

[Alan Childress]

No Conflict

The Arkansas Supreme Court has held that an attorney who serves as a prosecutor is not disqualified from representing a parent in a proceeding to change child custody when criminal charges are brought against the other parent's current spouse: "...disqualification is not required because there is not a direct conflict of interest nor is this a case of dual representation..."

The case involved a divorced husband and wife who were awarded joint custody of three minor children. The husband noticed bruises on the buttocks of one child that were later determined to have resulted from a whipping administered by the wife's live-in boyfriend. The attorney filed a petition for sole custody on behalf of the husband that was granted. The wife then married the boyfriend, who "repeatedly assaulted [her] while in the children's presence" and stabbed her with a barbeque fork.  The same attorney who had handled the custody petition was the prosecutor of the ensuing criminal battery case, which led to a motion to disqualify filed by the wife (who also divorced husband number two).

The court found no conflict and that "proper steps were taken to remove even the appearence of a conflict of interest" in that the prosecutor removed himself and his staff from the case and a special prosecutor took over. Withdrawal from both cases was not required. (Mike Frisch)

Opportunity Denied

The Delaware Supreme Court affirmed the decision of its Board of Bar Examiners denying an applicant's petition for partial certification of qualifications to sit for the bar examination. The applicant is a member of the Bucharest, Paris and New York bars and is presently a clerk for a (recused) justice of the court. The Board concluded that the LL.M. that the applicant had received from Harvard Law School "is not the equivalent of a juris doctor degree from an ABA-approved law school" and that the board "does not have the authority to waive any of the Supreme Court Rules or grant exceptions to those Rules."

Further:

The Board was within its discretion, supported by the law school accreditation standards of the ABA, as well as scholarly opinion, to conclude that [the applicant's] one-year LL.M. degree was not the functional equivalent of a three-year J.D. degree and, moreover, that [her] legal education in European civil law, her experience working for an American law firm for several months, plus her experience working as a law clerk for one year was insufficient to bridge the gap between her LL.M. and a J.D. degree

It seems to me that this applicant is sufficiently credentialed to be allowed to sit for the bar exam. If the rules in Delaware do not permit her the opportunity to prove her competence through taking and passing the bar, perhaps those rules should be amended. (Mike Frisch)