October 27, 2007
Black Robe Disorder
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)
Both Sides Now
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)
October 26, 2007
Breach Of Faith
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)
No Suspension For Solicitation Conviction
An attorney who had practiced law for 37 without incident pleaded guilty to a one-count misdemeanor of employing an individual to illegally solicit clients. The "misconduct occurred during a five-month period of time" and involved payments of $800 for the narrative medical report of any patient referred by a clinic if he accepted the clinic patient as a client. He was drawn into a larger investigation of fraud by the clinic, but there was no evidence that he was a participant in any fraud.
After a hearing, it was determined that "the $800 paid for each report was the 'market price' for such reports at the time" and that the lawyer '"vigorously vetted the bona fides of each of the potential client's claims before accepting the case...," that he had carefully monitered each case to prevent improper billing, promptly reported the conviction and expressed sincere remorse. He also had "essentially stopped practicing law until the conclusion of [the bar disciplinary] proceedings." Thus, the New York Appellate Division for the First Judicial Department imposed a public censure. (Mike Frisch)
October 25, 2007
New Trial Motion Denied
Not a legal profession case, but one of general interest. The Connecticut Superior Court, Stamford/ Norwalk Judicial District issued an opinion today denying a new trial to the defendant in the highly-publicized case involving the murder of Martha Moxley.
As Rich As Rockefeller
A dispute over, among other things, payment of legal fees in settling the estate of Carolyn Rockefeller was the subject of a decision from the New York Third Department. While it was "a fairly simple estate and the counsel fees were much larger than would be expected" the executor did not breach her fiduciary duty in paying the fees: "[e]very estate decision produced animosity and strife...it is understandable that the estate's counsel were actively and thoroughly involved in every aspect of the estate throughout the course of the estate's administration, thus increasing the legal expenses." However, the court held that it was improper for the executor to pay counsel fees to her former divorce lawyer out of estate funds, as such payments did not benefit the estate. (Mike Frisch)
Pay Your Dues
The New York Appellate Division for the Third Judicial Department suspended 54 lawyers for failure to file a registration statement and pay the required registration fee. The attorneys were provided written notice and had failed to respond to the motions for suspension filed on behalf of the Committee on Professional Standards. The order does not take effect for 30 days, which presumably will give the lawyers an opportunity to correct the problem if they wish to continue to practice law. (Mike Frisch)
A Bad Day In D.C.
The overarching theory of reciprocal discipline is that a lawyer is entitled to one full and fair hearing on whether he or she has engaged in misconduct and, if so, the appropriate level of professional sanction. Once a lawyer is disbarred, disbarment in every other jurisdiction where that lawyer is admitted should follow swiftly and as a matter of course.
A decision issued today by a division of the District of Columbia Court of Appeals ignores this fundamental approach. The lawyer had been disbarred in Maryland for intentional misappropriation of client funds (over a period of two years he had been out of trust in amounts between $174,000 and $421,000) and dishonesty. His claim that the misconduct should be mitigated by his depression was rejected by the Maryland Court of Appeals. The D.C. Board on Professional Responsibility unanimously recommended the identical sanction of disbarment.
The court of appeals purports to "accept" that recommendation but, rather than actually disbar the lawyer, remanded the case for a determination whether the lawyer was "substantially rehabilitated" from his depression. If so, presumably the disbarment will be stayed and the attorney will be placed on probation.
The decision is deeply troubling to me. Does the court truly wish to create law that will welcome lawyers disbarred in Maryland to practice in D.C.? How can D.C., which conducted no proceedings on the underlying misconduct, fairly evaluate whether this lawyer is substantially rehabilitated? Are the standards for serious dishonesty/intentional misappropriation (a lawyer term that means stealing) really so inconsistent between the two jurisdictions that disbarred Maryland lawyers will be permitted to simply relocate their practice to the Nation's Capital?
I haven't encountered too many lawyers who engaged in aggravated misconduct who did not have an excuse or explanation such as depression. If that is all it takes for mitigation, D.C. will become the lawyer probation capital of America. I hope and expect that Bar Counsel will seek and obtain rehearing or rehearing en banc of this decision. (Mike Frisch)
October 24, 2007
Process For Foreign Legal Consultant
An attorney admitted in Haiti is certified as a licensed foreign legal consultant in New York. The Departmental Disciplinary Committee for the First Department contends that his license should be summarily revoked based on claims that he misrepresented his status to various federal courts including the U.S. Supreme Court. It is also alleged that his bar status is misrepresented on his web site. The Appellate Division for the First Department held that a licensed foreign legal consultant is entitled to the same process (i.e. formal charges and a hearing) that a bar member gets to prior to revocation. The court ordered an interim suspension. (Mike Frisch)
A Great Movie Line I Never Really Appreciated
Posted by Jeff Lipshaw
Colleague Andy Perlman has posted over at Legal Ethics Forum on his rationalizations, I mean reasons, for not wearing a tie when he is teaching, and the most persuasive one reminded me of a movie line that had me laughing out loud a few days ago. (I sat in on his class last Friday to learn pedagogy at the feet of a master, and it was a brilliantly conceived and executed class, even if Andy had the beginnings of the flu. But, indeed, he had no tie.)
The movie is Wonder Boys, one of my favorites. Michael Douglas plays Grady Tripp, an English professor in Pittsburgh (1) who won the PEN Award for his first novel many years ago and has never published again; (2) whose wife walked out on him that morning; (3) who is having an affair with the chancellor (Frances McDormand) whose husband is the chair of the English Department, and (4) whose strange student James Leer (Tobey Maguire) has just shot the chancellor's dog in the upstairs hallway of her house while the faculty is gathered downstairs.
Grady and James are now in the car trying to figure out what to do with the dead dog.
James: Professor Tripp, can I ask you a question?
Grady: Yes, James.
James: What are we gonna do with - it?
Grady: I don't know. I'm still trying to figure out how to tell the chancellor that I murdered her husband's dog.
Grady: Trust me, James. When the family pet's been assassinated, the owner does not want to hear that one of her students was the trigger man.
James: Does she want to hear it was one of her professors?
Grady: [Pause.] I've got tenure.
A Bridge In Madison County
The County Attorney for Madison County Montana received a complaint that an individual had violated the Montana Streambed Preservation Act by placing a log over a creek in order in begin a bridge project. The county attorney filed a misdemeanor complaint but moved to dismiss because he was "not confident there was a violation...beyond a reasonable doubt" in light of the report of an expert hired by the state. He also referred a complaint that the same person had stalked a local public defender to the state attorney general's office, which prosecuted the case resulting in a not guilty verdict.
The individual then sued the county attorney for malicious prosecution and other causes of action. The case was dismissed with prejudice. The Montana Supreme Court affirmed the dismissal, concluding that "summary judgment on the basis of absolute prosecutorial immunity was appropriate." The county attorney had "properly exercised discretion, both in filing the complaint and in subsequently dismissing it when faced with the State's experts' equivocation." The stalking case was properly referred to the state attorney general because the county attorney had worked with the public defender, thus creating a conflict of interest.
If this is made into a movie, I assume that Clint Eastwood and Meryl Streep will pass on the lead roles.(Mike Frisch)
Overbilling Leads To Suspension
A lawyer who had previously been reprimanded and suspended for a year (stayed) was suspended for two years by the Ohio Supreme Court. He had been retained to represent a husband and wife in an action against the architects and contractor who designed and built their home. The lawyer billed over $69,000 for his services. He hired another lawyer to assist him and charged for work reviewing discovery requests and providing drafts to the other lawyer where there was no evidence of any work performed. He also charged 5.5 hours for work on the testimony of an expert after it was determined that an expert was not necessary. He had made refunds to the clients totalling over $18,000.
"[The lawyer's] penchant for stretching the truth in his billing calls into doubt his fitness to remain in a profession grounded on candor and fairness... Lawyers should strive to achieve their cluents' lawful objectives as expeditiously as possible and should afford clients the same honesty and diligence that they would want and expect if they were seeking professional advice and service themselves." (Mike Frisch)
Not A Partner
The New York Appellate Division for the First Judicial Department affirmed the dismissal of a complaint brought by an attorney who had been terminated from a law firm. The complaint sought, among other things, an accounting, a determination of interest in the firm and damages for breach of contract. Although the plaintiff was called a partner, "he was never a true equity member of the firm...he received distributions of net profits from the firm at a fixed rate, he was not responsible for the firm's rent or losses, was not a signatory of the partnership and/or operating agreement, made no capital investment and had no ownership interest in the firm." Causes of action predicated on purported promises to make the plaintiff a full partner were "properly dismissed as barred by the statute of frauds." (Mike Frisch)
An Agreed Disposition
A Virginia attorney entered into an agreed disposition of a five year suspension with terms for misconduct in 22 matters that were being investigated by the Virginia State Bar. The terms include a requirement that he execute a sworn statement "that he has not received a notice of non-sufficient funds concerning any and all financial institution accounts where [he] currently serves as a fiduciary or assumes a fiduciary obligation...during the five-year period of his license suspension." The disposition acknowledges extensive misconduct including use of his trust account for personal financial matters, including a payment on his son's law school loan. Explanation: "he must do what he had to do." I believe that disbarment in Virginia is for a minimum of seven years, although I was unable to confirm that fact in my cursory review of the Virginia Bar rules. (Mike Frisch)
October 23, 2007
Fit To Practice
The path of recovery from addiction can be a long and bumpy one, as demonstrated by a recent report of an Illinois Hearing Panel. The attorney had been placed on disability inactive status in 1996 as a result of problems associated with substance abuse and bipolar disorder. He was reinstated in 1998 but lapsed (an arrest for driving under the influence of alcohol and failure to attend therapy sessions) and was returned to disability inactive status. After several failed attempts at reinstatement, the hearing panel found that he is now fit for return to active practice with a series of conditions including a practice mentor for two years, no alcohol or drug use with random testing and compliance with a program of recovery. (Mike Frisch)
A[nother] 3L Candidate to the Bar Asks Your Advice About a C&F Matter--Underage Fake ID Conviction
Posted by Alan Childress
Last week we posted a bar candidate's query re his/her character & fitness options for a second DUI. Readers' responses were welcomed and, I'd say, quite helpful. That may have spawned this email to me asking similar help (edited slightly):
I am going to take the MPRE in November, and it got me thinking about the bar exam and how
to prepare elements for our application in advance. I had a question
about the effect of a criminal charge. Before I was 21, I was arrested
for using a fake ID. I did the required community service which
entitles me to expunge the charge from my record (which I have yet to do
but do plan on). I know that I must disclose this information, but I was
wondering if it would seriously affect my chances of being admitted to
the bar? I know that charges of fraud affect one's moral turpitude so I
was wondering if you think this will severely harm me in the future. Thank you for your time and help.
So, please weigh in, readers (and Mike and Jeff, of course). Does your answer depend on what state where the student plans to take the exam? One thing I do know: the person should seek the expungement ASAP.
Judge May Accept Reimbursement
A Massachusetts judge who presides in a drug court that is underwritten by a Department of Justice grant attended a required training session that involved out-of-state travel. The judge's expenses were reimbursed. The judge sought an ethics opinion on the propriety of the reimbursement. The Committee on Judicial Ethics issued an opinion concluding that: (1)no provision of the Code of Judicial Conduct prohibits such reimbursement and (2) the employees who conduct the training "do not routinely appear in the drug court as adversaries, litigants, or entities to which [the judge] may award income-producing business." The grant required the judge to attend the training and the reimbursement does not create any appearence of impropriety. (Mike Frisch)
Thy Partners Keeper
A lawyer in South Carolina had a partner with an active bankruptcy practice. The partner was suspended in 2004, as the partner "undertook representation of more bankruptcy clients than [the partner] could competently and diligently handle..." The lawyer, in anticipation of the suspension, attempted to transfer the bankruptcy cases to another lawyer in a different firm. He presented a consent order to the bankruptcy judge authorizing the transfer, but In doing so, he violated ethics rules relating to client confidentiality and proper withdrawal from representation. He also was primarily responsible for the firm's escrow account, which was out of balance. He made up the shortfall by leaving earned fees in the account.
The South Carolina Supreme Court accepted an agreed disposition of a 30 day suspension. One of the violations acknowledged in the consent was "conduct tending to pollute the administration of justice." (Mike Frisch)