August 6, 2007
Interpreting Rule 5.5(a)
An attorney who engaged in a pattern of lies and deceit in order to protect the assets of her parents from creditors was disbarred by the Court of Appeal of Maryland. An interesting aspect of the decision relates to the court majority's finding of a Rule 5.5(a) violation for practicing law in violation of the rules of a jurisdiction. The attorney was admitted in Maryland but not in Maryland's federal district court. The allegations of unauthorized practice involved drafting a pro se motion for her parents and a court appearance prior to being formally admitted in federal court.
A concurrence (joined by several judges) suggests that the rule is not violated when the lawyer offers advice regarding a federal case in a jurisdiction where the attorney is admitted to state practice: "...a lot of law is practiced in the corridors, lobbies and rest rooms in the courthouse." The rule has a geographical context, not one of dual sovereignty within a single state. The concurring judges would impose disbarment without the finding of a Rule 5.5(a) violation. (Mike Frisch)
The United States Court of Federal Claims recently held that an "injured party need not demonstrate bad faith in order for the court to impose...spoliation sanctions." The extent of the appropriate Rule 37 sanctions may reflect the culpability of the non-preserving party. The case involved the failure of the government to take appropriate steps to preserve evidence and subsequent misrepresentations to the court. The misconduct involved collective malfeasance by a number of government employees from DOJ and DOD. As one would expect, the government attorney responsible for the litigation blamed a paralegal. The court did not find it necessary to resolve fact disputes between the lawyer and the paralegal and declined to criticize the attorney. The court expressed particular concern that important evidence was lost or destroyed after a spoliation hearing and despite contrary assurances to the court.
Money quote: "...when critical documents go missing, judges and litigants descend into a world of ad hocery and half measures--and our civil justice system suffers." (Mike Frisch)
August 5, 2007
The South Dakota Supreme Court reversed the conviction of a defendant convicted of sexual offenses against four minors. The court held that trial counsel had provided ineffective assistance through a number of errors that had the cumulative effect of provided no meaningful defense. Among other things, the lawyer elicited prejudicial information that had been ruled inadmissible, failed to investigate prior unrelated claims of abuse that had not been prosecuted, incomprehensibly cross-examined a victim (and was criticized for taking long pauses between each question), and failed to assert a double jeopardy claim that would have reduced the number of charges against the defendant. The attorney was later placed on disability suspension and thereafter disbarred. (MIke Frisch)
Disbarment For Failure To Pay Support Obligation
At first blush, I was surprised to see an order from the Minnesota Supreme Court disbarring an attorney for failure to pay child support. However, there was more to the order than the fact of failure to pay. The attorney had pleaded guilty to a felony count of willful failure to pay and had "created and used false identification to avoid payment" of his obligations. The attorney had been subject to interim suspension for failure to to pay support and spousal maintenance and did not oppose the disbarment. (Mike Frisch).