Saturday, August 11, 2007
A lawyer sued a former client for unpaid fees and prevailed from arbitration through appeal. May the lawyer recover attorney fees for representing himself in the proceedings? No, under the circumstances, according to the Oregon Court of Appeals. The statute that the attorney relied on for the fee request allows reimbursement for fees incurred. Because the attorney had not incurred any fees in representing himself, he may not recover for the time he put into collecting the unpaid fees. (Mike Frisch)
For an update and the NY bar association's surprising response to the federal district court's invalidation of certain parts of NY's advertising/solicitation restrictions (on which matters Mike wrote here), see David Giacalone's thoughtful new post today at his f/k/a site, titled After Alexander v. Cahill, where does NYSBA stand on lawyer advertising?. [Alan Childress]
A litigant who was dissatisfied with the judge in a paternity action decided to investigate the judge's relationship with opposing counsel. The investigation revealed that opposing counsel represented the judge's girlfriend in pending litigation. On appeal from the denial of a motion to disqualify, the Florida Fourth District Court of Appeal granted the relief. The court found noted that disqualification would be mandated by rule for a blood relation. Because the judge would be disqualified if the lawyer represented his spouse, the representation of the girlfriend was a "distinction without a difference."
The link takes you to the court's web page. The case is Baez v. Koelemij, decided August 8, 2007.(Mike Frisch)
A lawyer was found to have neglected his client's employment discrimination claim. He submitted a letter to Bar Counsel concerning the allegations that was a "total fabrication." Further, it was found that his "lack of remorse or contrition and his attempt to blame his neglect on his client" was an aggravating factor. The sanction recommended by the D.C. Board of Professional Responsibility? A stayed 30 day suspension with one year probation. The board found that the accused lawyer had not deliberately lied under oath in the bar proceeding. Guess that's enough for probation in lieu of actual suspension.
Here, the submission of false evidence and lack of recognition of misconduct was no impediment to leniency. Is probation an appropriate sanction for a lawyer who contends he has done nothing wrong? It is in the District of Columbia. (Mike Frisch)
Friday, August 10, 2007
The Maine Supreme Court denied permission to sit for the Maine bar exam to an applicant who had graduated from Massachusetts School of Law, which is not accredited by the ABA. The applicant has been admitted in Connecticut. The court declined to extend its ruling to permit graduates of the institution who are admitted in Massachusetts to sit for the Maine bar to other states, as such an extension would require the court and bar admitting authorities "to make ad hoc determinations about the quality and seriousness of legal education offered at unaccredited law schools."
This doesn't make much sense to me. If the court accepts applicants from this law school who are admitted in Massachusetts, the court need not engage in any ad hoc analysis to allow the applicant who has obtained admission in Connecticut a chance for Maine admission. (Mike Frisch)
Here's an interesting and rare grant of habeas corpus relief from the United States Court of Appeals for the Fourth Circuit (courtesy of Appellate Law & Practice). The defendant awoke to his intoxicated ex-wife holding a gun to his temple. He was able to get the weapon from her and attempted to call 911. He tried to turn the weapon over to the police at a nearby bar but was arrested with the weapon as a result of a call placed by the ex-wife. The defendant had a prior felony conviction and was charged in federal court with possession of a firearm by a convicted felon.
He pleaded guilty with his lawyer, at the plea, interfering with his attempt to explain the circumstances. The Fourth Circuit held that the attorney had failed to conduct appropriate legal research on a defense of duress/necessity/justification. This lapse satisfied the standards of ineffective assistance of counsel. The case was successfully argued by a law student at the Wake Forest University School of Law. (Mike Frisch)
A law firm represented two people in the formation and purchase of a building in Lake Placid. One claimed that the other had engaged in fraudulent misrepresentations in the operation of the business out of the building. The law firm entered an appearance to defend the ensuing lawsuit and the plaintiff sought disqualification.
The Appellate Division, Third Judicial Department, upheld the trial court's denial of the motion to disqualify. The purchase and present dispute were not substantially related. The plaintiff had failed to show that confidential information relevant to the present suit had been disclosed to the firm. The "lawyer as witness" rule also did not require disqualification. (Mike Frisch)
May a disbarred lawyer sue a former client for allegedly unpaid fees and recover? No, according to a recent decision of the Connecticut Supreme Court. The disciplinary case was not disclosed to the client even though charges were filed shortly after the representation commenced. The client found out from a friend. The trial court concluded that the lawyer had been paid more than the value of services rendered and that "disbarment did not constitute a valid legal defense for the [lawyer's] inability to perform further..." The court concluded that the lawyer's inability to complete the legal services was not excusable but rather the lawyer's fault. (Mike Frisch)
A recent bar discipline case from Massachusetts (summary linked here) involves the issue of a lawyer's participation in drafting a will that benefits the lawyer or his relatives. The lawyer was not related to the testatrix, but his parents had been friends with her since 1945. His father had served as her attorney and had drafted a earlier will. Subsequently, the lawyer assumed responsibility for the representation and drafted a will that benefited himself and his mother. The attorney and his mother remained close and provided care and assistance to the testatrix. When the testatrix died, her godchildren (apparently unhappy with their share of the estate) filed a complaint with bar counsel.
The attorney was sanctioned with a public censure for violation of Rule 1.8(c). The rule prohibits a lawyer from drafting a will in which the lawyer inherits, with an exception for a lawyer related to the testatrix. In D.C., a recent rule amendment extends the exception to persons who have a close, family-like relationship with the testatrix. Such an exception would likely have prevented any finding of an ethical violation.
Practice tip: if you want to inherit, it's always safer to have an independent lawyer draft the will. (Mike Frisch)
Thursday, August 9, 2007
A lawyer in Delaware opposed the nomination of a superior court judge, providing public testimony in opposition. The judge was nonetheless selected for the position. The lawyer then filed a motion for the judge's recusal in all his matters, which the judge denied by letter order. An appeal of the letter order was heard by the Delaware Supreme Court.
The court held that motions to recuse must be case-specific. A free-standing motion for an order of recusal has no basis and must be denied as premature. (Mike Frisch)
The Illinois ARDC recently filed ethics charges against an attorney who is alleged to have engaged in sexual assault/battery against five clients. In one instance, it is alleged that the attorney called a client to schedule an office visit. When she asked him the purpose of the meeting, he responded "a blow job." The accused attorney had served as the State's Attorney for Ogle County.
Two points merit a brief mention. First, Illinois bar disciplinary complaints plead the misconduct in far greater detail than the charging documents of most state bars. Second, the joinder of multiple complaints is of crucial importance to show the pattern of conduct to the trier of fact. The conduct alleged by each complainant bears a striking similarity to that alleged by the others. (Mike Frisch)
Wednesday, August 8, 2007
A Massachusetts lawyer gave a free estate planning seminar at a seniors center that was attended by about 50 people. A widow who had not revised her will after the death of her husband arranged to meet with the attorney. She paid a flat fee of $7,500 for a revision of her estate plan. The fee was deemed an excessive fee for the work, consisting mostly of generating computer documents. The client decided that the attorney had not provided the help she had wanted and sought a refund. The attorney suggested arbitration. Eventually, the lawyer refunded half of the fee. However, the lawyer improperly sought and obtained the client's waiver of any claims against him.
The lawyer agreed to a suspension of three months. The balance of the fee, with interest, was repaid during the course of the bar discipline case. (Mike Frisch)
A plaintiff in a discrimination claim acknowledged and accepted the terms of a settlement in open court. Problems arose thereafter--"the legal equivalent of buyer's remorse"--when the terms were being reduced to writing. As often happens in such cases, the lawyer and client clashed on certain fact issues, leading to the lawyer's withdrawal from the representation.
The United States Court of Appeals for the Second Circuit affirmed the district court's decision to refuse to allow the plaintiff to reopen the case. Because the terms of the settlement agreement had been fully agreed to, the lack of a formal writing confirming the agreement was not a defect that permitted undoing the settlement. (Mike Frisch)
Posted by Jeff Lipshaw
On the other hand, there is a positive connotation to the same word, and it is fundamental to a practicing lawyer's stock in trade - the ability to read people and make judgments about whom to trust. Confidence is crucial to any skill that requires the crossing of a judgmental inflection point. To make a physical analogy, when you ski, you traverse the hill by crossing the fall line, the line by which a ball would roll down the hill. For a moment as you make the turn, you are potentially in free fall, and the way you succeed to have the confidence to make the turn, cross the fall line, and have the security of a traversed position. To ski very well, you are so confident that you cross the fall line dozens of times in a very short of time and distance. It seems to me anybody who vests trust in another person crosses an equivalent "fall line."
What happens to your self-confidence in the second text when you discover you have been taken - big time - in the first context? I'm contemplating that about myself right now, and some background and thoughts are below the fold.
A hearing panel in Illinois concluded that a public defender who was appointed to represent a defendant accused of selling marijuana and thereafter was retained in the case did not in so doing engage in ethical misconduct . The public defender was permitted to engage in private practice. The panel rejected the argument of the bar administrator that the absence of a specific prohibition did not preclude a finding of an ethical violation in this circumstance. The panel "[did] not believe this is a good practice" as it promotes the perception that retained lawyers will do a better job than public defenders. Nonetheless, there was insufficient evidence of a violation here. (Mike Frisch)
Tuesday, August 7, 2007
A recent article in The New York Law Journal (courtesy of the web page of the Vermont State Bar) reports that back up systems prevented the loss of answers to the last administration of the New York Bar exam. What can never be measured is the mental anguish caused by the glitches in the process. Although the bar exam is, for me, a blessedly dim memory, I can't imagine the impact of any distraction from performance on the exam. (Mike Frisch)
In a lawsuit involving attorneys who had shared responsibility for representing the plaintiff in a personal injury case, the Washington Court of Appeals--Division II enforced a fee-sharing agreement between the lawyers. The court held that an attorney who had moved from one firm to another had the apparent authority to enter into the arrangement. (Mike Frisch)
Monday, August 6, 2007
The D. C. Court of Appeals disbarred an attorney last week. The case involved acts of dishonesty including forgery and would be unremarkable but for the amount of time it took to resolve the matter. The firm that had reported the misconduct did so in 1997. Disciplinary charges--which were essentially uncontested--were filed in February 1999. It took 8 1/2 years for the D.C. bar disciplinary system to work its magic-- and the lawyer was free to practice throughout that time. Most of the time was taken by the hearing committee (3 1/2 years) and the court (over three years from argument to disposition).
My colleague Mitt Regan has an interesting piece in the current edition of The American Lawyer suggesting that equity ownership of outside investors in law firms might not bring on the death of Western civilization. Mitt suggests that adherence to a distinction between law as a profession rather than a business fails to acknowledge the reality that the practice has always been both. Professors Regan and Jeff Bauman are exploring this issue in their Center for the Study of the Legal Profession at Georgetown. (Mike Frisch)
If a lawyer fails to remove earned fees from an escrow account, does the lawyer engage in commingling? Yes, according to the Court of Appeals of Maryland. The attorney had been admitted to practice in 1964. He had represented a client in a case that resulted in a substantial settlement. A complaint purportedly signed by the client about the handling of funds was filed with bar counsel. The client advised bar counsel that he had not filed the complaint and was entirely satisfied with the attorney. Bar counsel did not get prompt cooperation and took a close look at the attorney's books. The investigation found the failure to pay earned fees, but did not reveal evidence that the lawyer improperly withheld payments from the client.
In the disciplinary case, the court concluded that the attorney's misconduct was "not willful but rather the result of his own disorganization and reliance on others to manage his accounts." He did intend to shield fees from the IRS. He received no benefit and was remorseful. No suspension. (Mike Frisch)