June 25, 2007
Honesty In Billing
An attorney in South Carolina was indicted on 30 counts of mail fraud. He had charged fees "at the direction of an officer of an insurance company for which [he] did defense work...time and charges to several of the company's files on which the time billed had not been spent." He was placed on interim suspension after the indictment but the criminal charges were dismissed. He initially contended that there had been no ethical misconduct because he was following the client's directions and had not billed for work that he had not performed. The South Carolina Supreme Court accepted his admission that he had violated Rule 1.5 (fees) and imposed a six-month suspension retroactive to the interim suspension. The court concluded that bills for legal services must be truthful and accurate even if the client representative directs otherwise (he was fired for paying fictitious claims and later convicted of criminal offenses unrelated to this case).
The Final Say
Last Thursday was a great day to be a member of the District of Columbia Bar. The D. C. Court of Appeals, in an opinion authored by Senior Judge Schwelb and joined by Associate Judges Ruiz and Blackburne-Rigsby, decided a case in a manner that is informed by something often lacking in the court's disciplinary board: common sense. The case involved a lawyer with a record of prior discipline who had engaged in misconduct in the representation (or lack thereof) of five clients in immigration matters.
The court found that the board had erred in rejecting charges of dishonesty where the attorney or his unlicensed assistant had sent a false letter to the INS verifying the client's employment: "Rule 8.4(c) is not to be accorded a hyper-technical or unduly restrictive construction." Further, in considering whether the attorney's conduct involved intentional failure to seek the client's lawful objectives, the court rejected the board's approach to consider intent in each case in isolation from the other four cases. Rather, each of the cases were part of a mosaic that required a finding that the misconduct was intentional as to all five clients. Because the board had conceded that its one year suspension with fitness recommendation was inadequate, the court suspended the lawyer for two years with fitness as proposed by the board's counsel at oral argument.
Cases like these show why it is necessary for judges, rather than volunteer lawyers, to have the final say in bar discipline matters. The point is underscored by the board's report, which is appended to the opinion. In recent years, the hallmark of this board has been a hyper-technical approach to everything, which usually (but not always) seems to work in the accused lawyer's favor. (Mike Frisch)
Failure To Investigate
The D.C. Court of Appeals, sitting en banc, decided a significant case involving allegations of ineffective assistance of counsel. The court reversed a 2-1 panel decision affirming a criminal conviction. The case involved child sexual abuse charges made by the younger half-sister of the defendant. The en banc court held that counsel's pretrial investigation into the relationship between the complainant and the defendant was deficient and resulted in prejudice to the defendant. The defendant, through new counsel, produced several affidavits from co-workers that raised doubts about the relationship between the defendant and the victim as portrayed by the prosecution's case. Rather than making a strategic choice regarding this potential evidence, counsel failed to adequately investigate the case: "this is a case in which, objectively speaking, trial counsel had strong reasons to ask appellant's co-workers about his relationship with [the victim], and no good reason not to do so. Counsel likewise had strong reasons to investigate the prosecution's claim that [the victim] was afraid of appellant, and no good reason not to do so. We are compelled to conclude that counsel's investigative omissions were objectively unreasonable, and hence that counsel's performance was constitutionally deficient." (Mike Frisch)
The District Court of Appeal of Florida (4th District) ordered the disqualification of a circuit judge in an eminent domain case against the City of Riviera Beach. The plaintiffs sued the city to prevent the seizure of private property. They sought disqualification because the judge's father had deeded to himself as trustee property located within the target area that, whether seized or not, "likely will result in a significant increase in value of [the father's] property" which "gives rise to a well-grounded fear that [the plaintiffs] may not receive a fair hearing." The plaintiffs sought a writ of prohibition after the circuit judge had denied the motion to disqualify. The court ordered that the case be reassigned, concluding that the judge's impartiality might reasonably be questioned. (Mike Frisch)
Welcome to Allison Hayward!
We are delighted to welcome Allison Hayward, a member of the faculty at the George Mason Law School, to LPB for a guest blogging stint.
Allison teaches civil procedure and professional responsibility, has her own blog, Skeptic's Eye, and writes extensively on the role of lawyers in the political process, including the recently posted article Election Day at the Bar.
Tune in for Allison's perspective on professional issues for the next several weeks.
June 24, 2007
Conditional Admission In Domestic Violence Bar Cases
Two recent Colorado disciplinary cases involving domestic violence were resolved by conditional admission. One involved property damage only-- the attorney agreed to a stayed thirty day suspension with two years probation and domestic violence counselling. The other case involved a criminal conviction where an attorney had assaulted his spouse while drunk--the attorney was subject to a suspension of a year and a day with all but 90 days suspended,followed by two years of probation. (Mike Frisch)
Kentucky Rules On Solicitation
The horribly tragic accident at Six Flags in Kentucky will undoubtedly require the victim's family to obtain counsel to resolve the legal claims. Kentucky has a rule linked here that prohibits in-person solicitation of clients. Contact by mail with a prospective client is allowed. The immediate past president of the state bar or the bar's executive director may declare that there is a disaster situation. The disaster plan would not appear to apply to a matter involving a single victim. (Mike Frisch)