Wednesday, October 31, 2007
A Justice Court Judge who had repeatedly engaged in ex parte communications and had given legal advice to litigants was sanctioned by the Mississippi Supreme Court. The judge had previously been privately admonished for similar misconduct. The judge was reprimanded and suspended for 30 days. The reprimand will be read in open court in the judge's presence. (Mike Frisch)
The San Diego Bar Association has issued an opinion addressing ethical concerns where a law firm outsources legal work on behalf of a client. The opinion holds that, under the hypothetical presented, the firm would not be aiding the unauthorized practice of law or violate its ethical duty of competence. The overall conclusion:
"The Committee concludes that outsourcing does not dilute the attorney’s professional responsibilities to his client, but may result in unique applications in the way those responsibilities are discharged. Under the hypothetical as we have framed it, the California attorneys may satisfy their obligations to their client in the manner in which they used Legalworks, but only if they have sufficient knowledge to supervise the outsourced work properly and they make sure the outsourcing does not compromise their other duties to their clients. However, they would not satisfy their obligations to their clients unless they informed the client of Legalworks' anticipated involvement at the time they decided to use the firm to the extent stated in this hypothetical." (Mike Frisch)
HALT has issued comments on proposed reforms of the system for regulation of federal judges. The comments call for a more transparent regulatory regime, including proposals that would abolish private sanctions, provide for lay participation in judicial misconduct proceedings, open hearings and an end to rules that prevent complainants from public disclosure of proceedings. (Mike Frisch)
The petition for reinstatement of a lawyer who had resigned in 1993 was denied by the Oklahoma Supreme Court. The lawyer had used funds from a conservatorship for his personal debts. The major impediment to reinstatement was his failure to make full restitution. The Client Security Fund has determined that the claims exceeded $133,000; he had repaid around $85,000. The court was "concerned...with [his] position that no further restitution is necessary." Further, because the ward was suffering from dementia, "[h]e...implied [she] was not harmed because she was unable to comprehend his breach of trust." The court soundly rejected this proposition:"...regardless of whether she knew her immediate needs were being met, [she] was harmed by [the attorney] because her trust in him was abused." (Mike Frisch)
A New York law firm was retained to defend a lawsuit filed in federal court. The retainer provided for arbitration of fee disputes "between $1,000 and $50,000." A meeting with the clients took place when the total bill was $49,424.80. The clients contend that they instructed the firm to cease work; the law firm contends otherwise. The firm withdrew shortly thereafter and new counsel entered an appearence in the litigation.
The firm sued for fees slightly in excess of $60,000. The clients moved for a stay and an order compelling enforcement of the arbitration clause in the retainer. The law firm appealed the trial court's order requiring arbitration of the dispute.
On appeal, the New York Appellate Division for the First Judicial Department reversed the order compelling arbitration because an amount in excess of $50,000 is at issue. A dissent would remand to the trial court to resolve the factual dispute whether the firm was instructed to cease work when the bill was in an amount that would permit the client to enforce the arbitration agreement: "there are unscrupulous lawyers and such a lawyer might make false statements or inflate a bill to avoid arbitration and place greater pressure on the client. All lawyers...can make mistakes...Moreover, the extent of the factual support the client may be able to muster in opposition to the lawyer's position appears to be irrelevant under the majority's approach."(Mike Frisch)
Tuesday, October 30, 2007
I rarely encounter a bar discipline case that reflects a gross miscarriage of justice against the accused lawyer, but here's one.
The attorney had been trained as an engineer in Iran. He came to work in the United States and decided to stay due to political unrest in his home country. He went to law school at night and took and passed the Maryland and Pennsylvania bar examinations.
He opened his own practice and employed an associate attorney. He discovered that the associate had shortchanged a personal injury client, terminated the associate's employment, but allowed the associate to stay in his offices for about two months. The associate went to Maryland Bar Counsel and falsely reported that the attorney had misappropriated over $400,000. Rather than investigate the allegations, Bar Counsel obtained an ex parte injunctive order freezing all of the attorney's accounts: "The consequences which flowed from the Order included many lawsuits." The associate had removed records, thus impairing the attorney's ability to defend against ethics charges. Faced with the ruin of his ability to continue his practice, the attorney resigned from the Maryland bar and was reciprocally disbarred in Pennsylvania. He resumed his career as an engineer. The associate was never prosecuted.
"Despite a five year investigation, Maryland Bar Counsel found no deficiency in [the attorney's] accounts. Instead, it concluded that the remaining unreleased funds held in the frozen accounts belonged to [the attorney]." No criminal prosecution was ever brought despite referrals to state and federal authorities. The accounts were frozen for five years, and only terminated when the Maryland state court dismissed the injunctive action without prejudice.
Maryland reinstated the attorney seven years after his resignation. Pennsylvania reinstated him in August of this year. He is now of counsel to a highly-regarded Maryland law firm. "Despite [his] significant losses, his fortitude and belief in the American judicial system remains solid...[d]espite all adversity, [he] never lost hope that the truth would be revealed, which it eventually was." (Mike Frisch)
The Pennsylvania Supreme Court recently suspended an attorney by consent for 15 months with some unusual provisions that will be in place for four years: the attorney must not facilitate unauthorized practice by a person named in the suspension order, may not employ that person in her law practice and must bar that person from the premises of her law office during business hours. The named individual was suspended from practice for three years in 2006. (Mike Frisch)
An attorney admitted to practice in New Hampshire in 2004 was involved in an auto accident when he hit a parked car while backing out of the Hampton Plaza. The accident occurred exactly one month after his New Hampshire admission. He falsely reported that he was driving another (insured) van at the time of the accident and pleaded guilty to misdemeanor insurance fraud. The Supreme Court Professional Conduct Committee imposed a six-month suspension.
On appeal, the New Hampshire Supreme Court increased the suspension to two years, effective to the date when the attorney had been suspended based on the conviction. While there were a number of mitigating factors, the fact that the conduct took place outside of the practice of law did not mitigate the sanction: "there is a distinction to be made between those cases where the attorney's actions 'directly threaten his clients' and those that do not...But that line is drawn for the purpose of increasing the sanction given to those who breach the special fiduciary duties created by the attorney-client relationship, and not for lessening the sanction affixed to an attorney who is acting as a private citizen." (Mike Frisch)
The Georgia Supreme Court disbarred an attorney who had defaulted on two complaints alleging that he had let civil complaints be dismissed with prejudice and had failed to advise the clients concerning the dismissals. The case is unremarkable except for the charming terminology of the Georgia courts: one of the cases had been placed on the "civil suspense file...with leave for the case to be reopened if not settled." I guess I'd be nervous if my case was on the civil suspense file. (Mike Frisch)
Monday, October 29, 2007
The Oregon State Bar has issued a formal opinion that addresses a series of hypothetical questions concerning pretrial publicity in a variety of contexts. Noting that Oregon Rule of Professional Conduct 3.6 "is clearer about what it does not prohibit than it is regarding what it does" the opinion concludes there can be no violation of the rule unless (1) there is an actual matter being investigated or litigated (2)the lawyer or someone acting at the lawyer's direction is a participant (3)the lawyer knows or reasonably should know that the statement will be "disseminated by means of public communication"(4) there is an imminent fact-finding process in the matter and (5) the lawyer knows or reasonably should know that the statement "will have a substantial (i.e., 'highly probable' ) likelihood of materially (i.e. 'seriously') prejudicing that imminent fact-finding process."
A footnote observes that "a lawyer disciplined on the theory that his or her statements concerning the claim or defense exceeded what was permissible under Oregon RPC 3.6(b) would have a potential defense that the rule is unconstitutionally vague."(Mike Frisch)
A law firm was hired to represent a client in "a myriad of legal challenges for [the client]" after her children had been taken into protective custody. The Tennessee Department of Children's Services ("DCS") found "[t]rash...throughout the [client's] house, dog feces and urine...on the floor, medical syringes and drugs...throughout the house in reach of the children, a variety of animal medications including questionable controlled substances...and an extreme malodor of feces and urine throughout the home." DCS had removed approximately 216 dogs and 14 cats from the client's home. The firm later terminated the representation and sued for legal fees. The client counterclaimed alleging neligence, legal malpractice, breach of contract, fraudulent misrepresentation and promissory fraud. The trial court granted summary judgment on the counterclaims and the client appealed.
The Tennessee Supreme Court held that summary judgment on the legal malpractice claim was proper. Although the client had produced two experts, one was "decidedly unfamiliar with the facts" and his opinion was properly excluded. The other expert was the client's ex-husband, who "is no longer a practicing attorney" and thus his opinion was properly excluded on that basis. However, summary judgment on the breach of contract claim was improperly entered based on the alleged failure to file a federal court action on the client's behalf. The claim of billing fraud may be asserted in defense of the law firm's action for unpaid fees. (Mike Frisch)
A D.C. hearing committee recently issued a report (which I assume was posted on the D.C. Bar's web page in error as it may be found in the listing of Board reports) that takes 38 pages of careful analysis to reach the result advocated by Bar Counsel as a disposition without any hearing. The lawyer had been suspended for six months in New York for a misdemeanor insurance fraud conviction. New Jersey and Florida promptly imposed reciprocal discipline. The lawyer has long since been reinstated in New York, New Jersey and Florida. In the District of Columbia, this would be far too efficient.
The D.C. Board ordered a full hearing into whether the offense involved moral turpitude, which would require disbarment under a provision of the D.C. Code. Bar Counsel did not charge moral turpitude and the hearing committee did not find it. The committee complains that its "ability to explore the underlying facts...was constrained by the limited record developed by the parties at the hearing." Well, the conduct took place in New York in 2001 and New York held a full hearing. What new evidence did the committee expect Bar Counsel to uncover six years after the fact?
The lawyer has already been suspended on an interim basis in D.C. for over 18 months and the matter must still be reviewed by the D.C. Board and Court of Appeals. (Mike Frisch)
At ELS blog here, IU's Bill Henderson has an excellent post (and great exchanges with thoughtful commenters, many of whom are past transfer students), on the increased rate of admitting transfer students (to game USN&WR rankings) and the effect on job interviews and employment of the new crop. Well worth a look. Also raised is something Jeff has talked about before: "brand dilution." [Alan Childress]
The D.C. Board on Professional Responsibility has recommended reciprocal discipline in a case where Maryland had reprimanded the lawyer and ordered a two-year probation under the supervision of a practice monitor. The case is unremarkable except for the fact that the Maryland Court of Appeals appointed the sanctioned lawyer's own counsel as the practice monitor. The D.C. Board recommends the same monitor, with some reservations: "We note...some concern, in that [the appointed monitor] served as counsel to Respondent in the Maryland proceeding before being appointed as his practice monitor. This...raises an issue as to whether a practice monitor who discovered a violation would be hindered in his duty of candid reporting because of a feeling of loyalty to a client. [The lawyer] did not serve as counsel to Respondent in these reciprocal D.C. proceedings. If he believes he cannot discharge his obligations as practice monitor unencumbered by any duty of loyalty to Respondent, then he should decline the appointment." (Mike Frisch)
A bar discipline case from Arkansas was resolved approximately three months after the complaint charging misconduct had been served. In light of the fact that there was a contested hearing and report, such speed in bar discipline matters is almost unheard of.
The case involved a lawyer who represented a husband accused of failing to give his child allergy medication. The mother sought to relocate out of state with the child and cut off the father's visitation rights. The husband claimed that he did not have access to the child's medical records. The lawyer was found, among other things, to have knowingly assisted the husband in offering false testimony in court and failing to take remedial measures that are required when false evidence is offered to a tribunal. The Supreme Court Committee on Professional Conduct imposed the sanction of a caution along with costs and a $500 fine. (Mike Frisch)
Saturday, October 27, 2007
The Ohio Supreme Court suspended a Mason County judge for 18 months, with six months stayed, based on findings that he had "directed intemperate and degrading remarks toward parties and attorneys, attempted to coerce prosecutors, defense attorneys and defendants into plea agreements and used his judicial powers to humiliate courtroom participants." Among the incidents recounted in the decision: placing a call to a defendant's alleged drug dealer in open court and refusing to return a cane to a handicapped defendant. The judge asserted in mitigation that he suffers from narcissistic personality disorder, which the court gave little weight because there was insufficient evidence that he was recovering from the condition.
In an unrelated matter, the court suspended a former judge for two years, with one year stayed, based on findings of 40 violations of the rules of judicial conduct and 12 violations of the rules of professional conduct, including failure to render rulings in a timely manner and intemperate and unprofessional verbal confrontations. Money quotes: "if you don't like it, you can appeal me" and "every law was made to be moved around." The court rejected the suggestion that professional discipline should not be imposed because the judge had lost a bid for reelection.
The link to the court's summaries provide a link to the court's decisions in the two cases. (Mike Frisch)
A Kansas lawyer was retained by the husband in connection with a protection from abuse action. He then was contacted by the wife, who spoke only Spanish, and accepted a fee from her in the same matter. The attorney, who is fluent in Spanish, advised the judge that he represented both sides and that the matter had been resolved by consent. The wife had a different view, leading to a charge of representing conflicting interests.
In a second matter, the lawyer was hired by the owners of a club who were concerned about harassment by law enforcement officers. The lawyer, his partner and legal assistant went to the club to observe, consumed alcohol and confronted the officers. Tempers flared, leading to a physical confrontation. Criminal charges against the lawyer were resolved by his participation in a diversion program.
The Kansas Supreme Court resolved the disciplinary charges with a published censure. (Mike Frisch)
Friday, October 26, 2007
The Illinois ARDC has filed ethics charges against a bar member alleging misconduct committed in his capacity as elected pastor of the Grace Conservative Baptist Church of Chicago. The accused attorney conducted his law practice out of church offices. He is alleged to have breached his fiduciary duties as pastor by obtaining a $25,000 loan from the church (which the church members had voted on and agreed to) without security or a promissory note. It is also alleged that he asked a bank to fund a loan of $160,000 to the church using church property as collateral. He represented a church member (who was church treasurer) in a foreclosure matter and authorized payments totalling $60,000 from the bank loan to reinstate the mortgage. Neither the loan to the lawyer or the mortgage payment have been repaid. The lawyer also is alleged to have caused two checks totalling over $26,000 to be paid to him from church funds to use for his business and personal expenses. (Mike Frisch)
A foreign national convicted on a plea of guilty to aggravated sexual battery claimed that he received ineffective assistance of counsel and that his conviction violated the Vienna Convention on Consular Relations. The Tennessee Supreme Court held that the contentions were time-barred. The petitioner's inability to read or write in English did not toll the time for seeking post-conviction relief. (Mike Frisch)
A criminal defendant pleaded guilty to an offense with an agreement that the prosecutor would recommend a sentence of imprisonment with all but 30 days suspended, and credit on the 30 days if the defendant was sucessful in a rehabiliation program. At the sentencing, which took place before a different judge, the prosecutor advised the court that the defendant had not completed the program and asked the court to impose a sentence of imprisonment for five years. Defense counsel did not object.
The Iowa Supreme Court held that defense counsel rendered ineffective assistance of counsel in failing to object and require the state to honor its promise. The case was remanded for resentencing. (Mike Frisch)