Saturday, July 28, 2007
The Nevada Supreme Court issued a decision this week in the much-reported controversy between Chief Judge Hardcastle and Judge Halverson of the Eighth Judicial District of Clark County. The court interprets the pertinent rules relating to the authority of a chief judge. The court concludes that the chief judge acted within her authority in removing Judge Halverson from hearing criminal cases. However, the chief judge overstepped her authority by banning Judge Halverson from the courthouse.
Here is a link to documents relating to the litigation against the judicial discipline board initiated by Judge Halverson. One of her attorneys is former state bar president and respondent in the leading Supreme Court case concerning public comments by attorneys involved in pending cases, Dominic Gentile. (Mike Frisch)
A recent decision of the United States District Court for the Northern District of New York has enjoined enforcement of some aspects of the more restrictive bar rules concerning attorney advertising. The decision does not affect the rules relating to direct solicitation of victims in the wake of an accident. There is a discussion of the rules that relate to web sites and domain names. The court notes some concern about forms of advertising that are protected by the First Amendment: "Without question, there has been a proliferation of tactless, and at times obnoxious, methods of attorney advertising. New technology and an increase in the types of media...has exacerbated this problem and made it more ubiquitous...the public perception of the legal profession has been greatly diminished."
The president of the New York state bar has issued a press release in response to the decision. (Mike Frisch)
The Pennsylvania Supreme Court recently entered an order clarifying its policies regarding public access to information concerning bar discipline cases. Proceedings are open unless the issue is attorney disability rather than ethical misconduct. If public charges are dismissed or result in private sanction, the proceedings are then treated as confidential unless the accused attorney wishes the result to remain a matter of public record.
The court also has recently adopted rules to standardize pro hac admissions procedures.(Mike Frisch)
In a postconviction proceeding on behalf of defendant convicted of first degree murder, the Nebraska Supreme Court evaluated and rejected a conflict of interest claim. An attorney who had been associated with defense counsel (the court describes the arrangement as office-sharing, with the associate paying half of his earnings to the firm) accepted employment with the prosecutor's office. The prosecutor's office continued to handle the appeal until postconviction counsel learned of the conflict. A special prosecutor was then appointed. The court held that the departing attorney did not have any confidential information about the case. An actual, rather than potential or imputed conflict, is required to establish a basis for postconviction relief. (Mike Frisch)
Friday, July 27, 2007
In Minnesota, a lawyer who has been suspended or disbarred cannot be reinstated unless there is clear and convincing evidence that the former lawyer has "undergone such a moral change and to now render [the lawyer] a fit person to enjoy the public confidence once forfeited." In a case decided yesterday, the Supreme Court denied reinstatement to an applicant who had written numerous checks on insufficient funds while suspended for misconduct that had included findings of misappropriation and failure to properly maintain trust account records. (Mike Frisch)
Thursday, July 26, 2007
CINCINNATI -- Doctors here consulted botanists and forestry experts in the strange case of a man who has shown his age. . .by growing tree rings. Fifty of them as a matter of fact.
"I was just doing what my internist said I should do on turning fifty," said Paul L. Caron, Associate Dean of Faculty and the Charles Hartsock Professor of Law at the University of Cincinnati Law School. "I went in for the colonoscopy, and everything was copacetic from a polyp standpoint, but I appear to have grown fifty tree rings. My proctologist told me it was the first time he ever had to call in a tree surgeon for a consult. Personally, I was ashen."
Linguists were not surprised. The word annulus, or tree ring, derives not from the Latin anno for year, but shares its root with anus. "How appropriate for this to appear first during a colonoscopy," exclaimed Prof. Dr. F. Sigmoid Stammbaum of Humboldt University in Berlin.
Colleagues of Professor Caron also were not surprised, but most refused comment beyond snickering. "I'm not going out on a limb," barked one harried blog editor in the far-flung Caron empire. Another professor commented, "Most tax people are weenies, but Paul has really branched out, and managed not to sap himself in the process."
Caron is the editor of the wildly-poplar "Tax Prof Blog." He turns fifty today, July 27, 2007. His colleagues at LPB wish him a happy birthday and at least fifty more annuli.
[Assembled from wire service reports by Jeff Lipshaw]
A lawyer representing in passenger who had suffered minor injuries in a two car traffic accident sent a letter to the insurance company for the other driver that contained "fabricated testimony...from a nonexistent transcript" in which the driver purportedly admitted responsibility for the accident. The insurer did not rely on the false transcript and eventually settled the case.
The Ohio Supreme Court rejected the proposed stayed suspension recommendation of the Board of Commissioners on Grievances and Discipline and suspended the attorney for six months. The case was more serious than prior cases "involving inadvertence or haphazard corner-cutting." Despite significant mitigating evidence, an actual suspension was required in the case. Two justices dissented, favoring a suspended sanction.
Obviously, there is a world of difference between an actual and a stayed suspension. A suspension of any length can be devastating to a sole or small firm lawyer. Courts and boards throughout the country struggle with line-drawing fine distinctions in dishonesty cases in particular. I do favor the policy approach that actual suspension is necessary where the evidence establishes intentional dishonesty for advantage in a practice setting. That seems an appropriate bright line rule to me.
On the other hand, there were weighty mitigating factors: no previous discipline over a long career, full cooperation, no financial loss, and that the lawyer had "apologized and accepted responsibility for his misdeeds, which occurred during a stressful period, and he has established his excellent character and reputation apart from this one isolated incident of wrongdoing."
Cases like this one can be emotionally charged and difficult for disciplinary counsel as well as for the accused attorney. I have handled any number of cases, both involving dishonesty and neglect, where one would have to be a robot to have no sympathy for the lawyer. You watch someone sob on the stand as they admit their failings and shortcomings. After hearing every imaginable excuse (and a few you could not possibly imagine), you want to hug someone who actually owns up to the misconduct. For courts and boards, these can be the hardest cases.(Mike Frisch)
A lawyer represented a client in two breach of contract cases against The Christian Coalition of America, Inc. A key issue in the first case was whether a written agreement (which neither side had produced) contained an arbitration clause. On cross, the lawyer's client testified that he had located the agreement and given it to the lawyer. The lawyer immediately nonsuited the case, which then went to arbitration. The judge "strongly reprimanded" the lawyer for not disclosing that the document had been located and "contained the very arbitration provision he had previously denied existed." The court imposed monetary sanctions against the lawyer and his client.
The lawyer filed the second suit while the arbitration was pending. A motion to disqualify the lawyer on conflicts grounds was filed. The lawyer did not appear, the motion was granted, and the lawyer was directed to show cause why his license to practice in the Circuit Court should not be revoked. The lawyer then sent an email to the Coalition stating that their counsel was "certainly demonically empowered" and that the sanctions award was "an absurd decision from a whacko judge, whom I believe was bribed." After a hearing, the lawyer's license to practice in the circuit court was revoked.
On appeal, the Virginia Supreme Court affirmed the revocation, holding that the circuit court had inherent authority to revoke the license to practice before it, which did not amount to a revocation of the attorney's Virginia license. The lawyer also had been provided adequate notice of the alleged misconduct.
As a matter of disciplinary procedure, it is noteworthy that the circuit court order did not operate to suspend the attorney's Virginia license. The order referred the matter of potential bar discipline to the Virginia State Board (i.e. disciplinary counsel) and to the Supreme Court for possible reciprocal revocation. Presumably the attorney would be permitted to contest action against his Virginia license before losing his bar privileges. He is, however, barred from practice in Arlington County.
Wednesday, July 25, 2007
It seems like many of the most colorful disciplinary cases come from Louisiana. A Disciplinary Committee recently recommended a 36 month suspension of a lawyer who had been suspended on an interim basis as a result of a federal conviction for misprison of a felony "relative to a conspiracy to violate civil rights." The suspension would be nunc pro tunc to the date of the interim suspension.
The lawyer was trapped in the web of a now-disbarred judge. He was corporate counsel to a single client, who was embroiled in domestic litigation. The client owned restaurants ("Copelands"). The judge presiding in the domestic case wanted to do business with the client. The judge initiated ex parte contacts with the lawyer "to pursue a seafood supply contract" with the client. The lawyer refused to cooperate in providing the judge and his associate with seafood pricing information, which "created significant frustration by [the judge]." The lawyer had the pricing information but did not provide it. At the judge's request, the lawyer gave appetizers and refreshments at one of the client's restaurants to the judge's daughter for a birthday, as well as complimentary gift cards.
The lawyer was convicted of failure to report the conspiracy. He also "concealed the full extent of his knowledge when questioned by federal authorities." The committee was not entirely unsympathetic: "[The attorney] allowed himself to be a pawn. He was taken advantage of. He found it difficult to say no to a Judge, especially one who was presiding over his only client's case." (Mike Frisch)
New Jersey has enacted a Conflicts of Interest Law ("Act") that applies to former government attorneys. The Act imputes the personal disqualification of the lawyer to the firm, thus mandating disqualification notwithstanding compliance with New Jersey's version of Rule 1.11. A lawyer who had complied with the ethics rule sought an opinion "on whether the [rule] should prevail over the more restrictive mandates of [the Act]."
The New Jersey Supreme Court held that the Act "serves a legitimate governmental purpose and does not improperly encroach on judicial interests" and that New Jersey lawyers must comply with both the Act and the ethics rule. The court discusses the separation of powers issue and concludes that it should defer to the legislaure in this instance. There is an impassioned dissent based on the court's exclusive authority to regulate the practice of law. The dissent discusses the development of New Jersey's Rule 1.11 and states: "Nothing---absolutely nothing---has been presented to this Court to justify reneging on the common sense provisions of RPC 1.11(c)."
The majority referred the matter to its Professional Responsibility Rules Committee for a reevaluation of the revolving door rule and "to draft, for the Court's consideration, a proposed rule in harmony with [the Act]." (Mike Frisch)
The New Jersey Supreme Court recently decided a significant medical malpractice case involving the applicable standard of care, the "extent to which medical emergencies fall outside the doctrine of informed consent" and "whether post-surgical communications from a physician to the members of a patient's family may give rise to a fraud-based cause of action..." A question relating to the duty of candor to opposing counsel is briefly discussed at the conclusion of the opinion.
The defendant's expert had opined at deposition that the injury could have been caused in one of two ways. The expert advised counsel shorthy before trial that there was a single cause. While finding there was an obligation by defense counsel to advise plaintff's counsel of the material change, the change conformed to the plaintiff's theory and causation was conceded. Thus, the ethical lapse did not cause prejudice to plaintiffs. (Mike Frisch)
Tuesday, July 24, 2007
An attorney in Florida has requested an ethics opinion in circumstances where a divorce client has removed documents from the spouse's office without permission, improperly (by figuring out the password) accessed and printed email and documents, including attorney-client information, and removed documents from the spouse's car. The proposed opinion surveys cases and ethics opinions from other jurisdictions and concludes that the attorney must "discuss the situation, including the ethical dilemma presented by the client's actions, with the client [and] must inform the client that the materials cannot be retained, reviewed or used without informing the opposing party...If the client refuses to consent to disclosure, the inquiring attorney must withdraw from the representation." The Florida Bar is accepting comments on the proposed opinion through August 31. (Mike Frisch)
The Michigan Supreme Court recently decided to retain an administrative order entered last year that prohibits the "bundling" of asbestos-related cases for settlement or trial. The "purpose of the order is to ensure that cases filed by plaintiffs who exhibit physical symptoms as a result of exposure to asbestos are settled and tried on the merits of that case alone". Dissenters from the original order were highly critical of this approach to asbestos litigation: "This haste [to adopt the order] without sufficient information, is unrestrained and unwise." (Justice Weaver) "[The order] makes a mockery of due process...It virtually ensures that justice will be so delayed for many diseased plaintiffs that they will never live to see their cases resolved." [Justice Kelly].
In its order retaining the provision, Justice Corrigan states that, notwithstanding the above dire predictions, the order "has not caused the sky to fall." Justice Kelly responds: "Since this order was entered, we have received no indication that [its] objective has been even minimally attained." Rather, cases continue to be bundled for settlement, but without the benefit of court assistance. (Mike Frisch)
Monday, July 23, 2007
A report today in Law.com (courtesy of the web page of the Connecticut Bar Association) states that the firm of a Houston, Texas plaintiffs lawyer was ordered to pay $35.7 million in overcharged expenses by former breast implant clients. The award was made by an artitration panel as provided for by a clause in the fee agreements. The interest and attorney's fees will bring the total award to "as much as $58 million." (Mike Frisch)
A South Carolina attorney was disbarred today based on his default on charges of multiple instances of misconduct. He had been convicted of driving without a valid license and DUI. He gave a non-lawyer signatory authority on his operting and trust accounnts, leading to overdrafts and 34 negative balances on the accounts. He failed to pay a court reporter for a deposition transcript that he had ordered. He sent threatening letters that contained false claims. There were two instances of failure to disburse entrusted funds.
One interesting matter involved a process server who was hired to serve papers on his client. On attempted service, the client denied her identity, threw the papers at the process servers, and locked them inside a parking lot. When the attorney arrived, "he used his car to further block the...exit" and refused to move the car until the police arrived.
The South Carolina Supreme Court agreed with findings that the attorney's "conduct indicates an obvious disinterest in the practice of law" as he departed the jurisdiction with knowledge that charges were imminent (and apparently left the United States). The disregard for serious ethics charges made the "sanction of disbarment...more than adequately justified." (Mike Frisch)
The United States District Court for the District of Columbia denied cross-motions for summary judgment in a matter where several law firms had brought an action against the FDIC regarding the agency's decisions on fee payments. The law firms had represented shareholders of Benjamin Franklin Savings & Loan in a shareholder derivative suit and class action after FDIC had been appointed as the receiver for the bank. The IRS asserted a claim for an "amount [that] far exceeded the surplus of the receivership." The firms represented the shareholders in the tax case. The matter was settled for $50 million and FDIC agreed to pay attorney's fees.
Unsatisfied with the fee payments, the firms filed suit. The court denied summary judgment to the firms, holding that the fee payments were not based on a prevailing party status: "Rather, the FDIC's payments here are part of an overall agreement reached amongst the parties and the United States to settle the tax case." FDIC was not entitled to summary judment because it "has not provided any evidence to justify its lodestar calculations for payments to plaintiffs." Without an evidentiary basis to evaluate the fee payments, "the Court cannot conduct a de novo review of the FDIC's payment decisions." (Mike Frisch)
An article in today's New York Law Journal discusses the potential issues (disciplinary, civil and criminal) that may be encountered by in-house legal counsel. The overall sense of the article is that the problems that in-house counsel face make their world more dangerous than it has ever been in the past. This article was found on the web page of the Vermont State Bar. (Mike Frisch)
A recent ethics opinion from Wisconsin addresses the recurring issue under Rule 4.2 of contacting employees of an organization without permission of the organization's counsel. The opinion concludes that such contacts are allowed with respect to current employees except those that "direct, supervise or regularly consult with the organization's lawyer concerning the matter, or whose act or omission in connection with the matter may be imputed to the prganization for purposes of civil or criminal liability." Former employees are fair game. In any contact, the lawyer must advise of her role in the matter and avoid discussion of privileged matters.
The question that occurs to me is this: how does a lawyer know who in an entity "directs, supervises or regularly consults" with counsel? The lawyer can ask but the employee may not be fully capable of responded on the fine legal points. The comments to the ABA Model Rules suggest, in uncertain circumstances, the advisability of seeking a court order. That does not help in a pre-litigation context. The Model Rule comment 8 provides that actual knowledge that the witness is represented is required to prove an ethics violation, but states that a lawyer cannot evade knowledge by "closing eyes to the obvious."(Mike Frisch)