November 3, 2007
An attorney who had been placed on probation by the Minnesota Supreme Court in 2005 failed to adhere to the court-imposed requirements. To make matters worse, the attorney mishandled client funds and did not cooperate with the bar's investigation. The court was not favorably disposed toward giving another break to the lawyer and imposed disbarment. (Mike Frisch)
Moved, No Forwarding Address
A hearing panel in Illinois recommends disbarment in a case where the attorney had abandoned his practice, which resulted in the appointment of a receiver to clean up (to the extent possible) the mess left behind. There were, among other charges, three instances where the lawyer had entered into business transactions with clients that were found (by default) to involve overreaching and fraud. (Mike Frisch)
November 2, 2007
A lawyer disbarred in 1987 was reinstated by the Nebraska Supreme Court. While employed by a firm, he had withheld (i.e. stolen) over $20,000 in fees collected that were due to the firm. He was caught and given a second chance. He then misappropriated over $20,000 and was reported to the bar.
The court states that "a mere sentimental belief that a disbarred lawyer has been punished enough will not justify his or her restoration to the practice of law" and that reinstatement "should be difficult rather than easy." However, the lawyer has been successfully treated for alcoholism, made restitution and is presently competent to practice. He also had produced numerous character witnesses. The fact that he had declared bankruptcy in 1995 was no bar to reinstatement as he had a legal right to such protection. (Mike Frisch)
A Sharp Dissent
A former employee sued Liz Clairborne Inc. alleging discrimination based on his sexual orientation. Defendant's counsel erroneously believed that a motion for summary judgment was due within 120 days. In fact, there was a 60-day limit for such motions. Notwithstanding the tardy filing, the motion was granted.
On appeal, the order granting summary judgment was reversed by the New Appellate Division for the First Judicial Department. Counsel's error did not excuse the failure to file in a timely manner and did not constitute good cause. A dissent accuses the majority of "officious intermeddling" with the ability of the trial court to conduct its business. Further, the dissent notes that the trial court's order directing compliance with the "local rule" was vague. (Mike Frisch)
Benefit Of The Doubt
A New York attorney was retained to prosecute a personal injury case on behalf of an injured wife and her husband. He in turn arranged for a lawyer who was not affiliated with him to draft the complaint. He falsely assured the husband that the complaint had been filed and served. After nearly a year, the husband contacted the lawyer, who had not followed up. The husband wanted to pick up the file. The lawyer had a paralegal falsely sign the client's name to a complaint and filed the case. The client discovered the forgery when she obtained her file. A disciplinary matter was initiated.
The New York Appellate Division for the Second Judicial Department considered as mitigation the lawyer's full cooperation, unblemished record, that his judgment "was clouded by the stress of his fiancee's illness", his own physical exhaustion, and the "burden of dealing with the unrealistic demands of his injured client's husband." The court imposed public censure.
The last factor is worth contemplating. Was it unrealistic to expect the lawyer to tell the truth and proceed with diligence? Are difficult clients entitled to lesser protection than more worthy ones under the ethics codes for lawyers? In any event, the difference between a short suspension and a public censure is like night (the dark of having to withdraw from every case ) and day (the light of uninterrupted practice).
November 1, 2007
The Nevada Supreme Court has just posted its decision in the much-publicized judicial misconduct case involving Judge Elizabeth Halverson. The Court upholds the Commission on Judicial Discipline's exercise of the "rarely used but formidable power" to impose interim suspension when necessary to uphold the integrity of the judiciary:
"The interim suspension of a duly elected judge is a significant matter, and such a sanction should not be imposed lightly. Only when the Commission is satisfied that the threat posed by a judge cannot await the disposition of formal proceedings is such a powerful tool properly invoked, and the remainder of the discipline proceeding must progress with dispatch. In this case, the Commission did not abuse its discretion in determining that the evidence before it met the required standard. As noted by the Michigan Supreme Court, even an elected judge is entitled to sit only while he or she adheres to the position’s requirements, including compliance with the Code of Judicial Conduct. We therefore affirm the Commission’s order."
The court cites evidence that the judge had dined and conversed with deliberating jurors in a criminal case, treated staff and litigants with disrespect and often fallen asleep on the bench (her former courtroom bailiff testified that the judge fell asleep on the bench every day). (Mike Frisch )
Making Matters Worse
A Pennsylvania lawyer was the subject of a client complaint. The lawyer had previously been privately reprimanded twice. Disciplinary Counsel resolved this complaint by an informal admonition and directed the lawyer to return $500 to the client. In Pennsylvania, the lawyer must appear and have an informal admonition administered in person. The lawyer twice failed to appear for the admonition. The first time, she "didn't want to also go in and have to admit things that weren't true"and "part of [her] didn't want to deal with it." The second time, she acknowledged she "probably should have just dropped everything and gone down" to the Office of Disciplinary Counsel. She also did not refund the money to the client.
As a result, the Pennsylvania Supreme Court ordered a 90 day suspension. (Mike Frisch)
Ethics Journal Hits Street
The Fall 2007 edition of the Georgetown Journal of Legal Ethics is now available on line. There are articles on ethical issues relating tt whistleblowers and a piece that I wrote on the high-profile "law clerk sting" case from Massachusetts. The case was argued before the Supreme Judicial Court in early October. (Mike Frisch)
What's In A Name?
Yesterday, the Indiana Court of Appeals affirmed the conviction of a defendant who, as a jail inmate, had possessed a "shank." The defendant claimed that he needed the sharp object for self-protection as he had been subject to three prior inmate assaults. The object had been discovered in an inspection initiated because he was not wearing prison-issued underwear.
The defendant's name is Random Justice Phillips. (Mike Frisch)
Private Payment Permissible
A lawyer retained by the personal representative of a decedent's estate sent monthly bills to the client but did not seek payment, as his retainer agreement provided that he would wait until probate was completed. He would then seek payment from estate funds. The personal representative later discharged the lawyer and paid him out of her own funds. When probate was completed, the trial judge ordered the lawyer to return 25% of the fee because he had been paid without obtaining prior court approval.
The D.C. Courts of Appeals reversed the trial court. Prior approval is required only when the lawyer is paid from estate funds.The applicable statute cannot limit private payment without court supervision as a contrary holding "would abridge the right of competent adults to enter into otherwise-lawful economic transactions with other competent adults..." The court vacated an opinion it had previously issued in the case. (MIke Frisch)
October 31, 2007
A Public Reprimand
A Justice Court Judge who had repeatedly engaged in ex parte communications and had given legal advice to litigants was sanctioned by the Mississippi Supreme Court. The judge had previously been privately admonished for similar misconduct. The judge was reprimanded and suspended for 30 days. The reprimand will be read in open court in the judge's presence. (Mike Frisch)
Ethics Of Outsourcing Legal Work
The San Diego Bar Association has issued an opinion addressing ethical concerns where a law firm outsources legal work on behalf of a client. The opinion holds that, under the hypothetical presented, the firm would not be aiding the unauthorized practice of law or violate its ethical duty of competence. The overall conclusion:
"The Committee concludes that outsourcing does not dilute the attorney’s professional responsibilities to his client, but may result in unique applications in the way those responsibilities are discharged. Under the hypothetical as we have framed it, the California attorneys may satisfy their obligations to their client in the manner in which they used Legalworks, but only if they have sufficient knowledge to supervise the outsourced work properly and they make sure the outsourcing does not compromise their other duties to their clients. However, they would not satisfy their obligations to their clients unless they informed the client of Legalworks' anticipated involvement at the time they decided to use the firm to the extent stated in this hypothetical." (Mike Frisch)
Federal Judicial Discipline
HALT has issued comments on proposed reforms of the system for regulation of federal judges. The comments call for a more transparent regulatory regime, including proposals that would abolish private sanctions, provide for lay participation in judicial misconduct proceedings, open hearings and an end to rules that prevent complainants from public disclosure of proceedings. (Mike Frisch)
The petition for reinstatement of a lawyer who had resigned in 1993 was denied by the Oklahoma Supreme Court. The lawyer had used funds from a conservatorship for his personal debts. The major impediment to reinstatement was his failure to make full restitution. The Client Security Fund has determined that the claims exceeded $133,000; he had repaid around $85,000. The court was "concerned...with [his] position that no further restitution is necessary." Further, because the ward was suffering from dementia, "[h]e...implied [she] was not harmed because she was unable to comprehend his breach of trust." The court soundly rejected this proposition:"...regardless of whether she knew her immediate needs were being met, [she] was harmed by [the attorney] because her trust in him was abused." (Mike Frisch)
Arbitration Clause Not Enforced
A New York law firm was retained to defend a lawsuit filed in federal court. The retainer provided for arbitration of fee disputes "between $1,000 and $50,000." A meeting with the clients took place when the total bill was $49,424.80. The clients contend that they instructed the firm to cease work; the law firm contends otherwise. The firm withdrew shortly thereafter and new counsel entered an appearence in the litigation.
The firm sued for fees slightly in excess of $60,000. The clients moved for a stay and an order compelling enforcement of the arbitration clause in the retainer. The law firm appealed the trial court's order requiring arbitration of the dispute.
On appeal, the New York Appellate Division for the First Judicial Department reversed the order compelling arbitration because an amount in excess of $50,000 is at issue. A dissent would remand to the trial court to resolve the factual dispute whether the firm was instructed to cease work when the bill was in an amount that would permit the client to enforce the arbitration agreement: "there are unscrupulous lawyers and such a lawyer might make false statements or inflate a bill to avoid arbitration and place greater pressure on the client. All lawyers...can make mistakes...Moreover, the extent of the factual support the client may be able to muster in opposition to the lawyer's position appears to be irrelevant under the majority's approach."(Mike Frisch)
October 30, 2007
Miscarriage Of Justice
I rarely encounter a bar discipline case that reflects a gross miscarriage of justice against the accused lawyer, but here's one.
The attorney had been trained as an engineer in Iran. He came to work in the United States and decided to stay due to political unrest in his home country. He went to law school at night and took and passed the Maryland and Pennsylvania bar examinations.
He opened his own practice and employed an associate attorney. He discovered that the associate had shortchanged a personal injury client, terminated the associate's employment, but allowed the associate to stay in his offices for about two months. The associate went to Maryland Bar Counsel and falsely reported that the attorney had misappropriated over $400,000. Rather than investigate the allegations, Bar Counsel obtained an ex parte injunctive order freezing all of the attorney's accounts: "The consequences which flowed from the Order included many lawsuits." The associate had removed records, thus impairing the attorney's ability to defend against ethics charges. Faced with the ruin of his ability to continue his practice, the attorney resigned from the Maryland bar and was reciprocally disbarred in Pennsylvania. He resumed his career as an engineer. The associate was never prosecuted.
"Despite a five year investigation, Maryland Bar Counsel found no deficiency in [the attorney's] accounts. Instead, it concluded that the remaining unreleased funds held in the frozen accounts belonged to [the attorney]." No criminal prosecution was ever brought despite referrals to state and federal authorities. The accounts were frozen for five years, and only terminated when the Maryland state court dismissed the injunctive action without prejudice.
Maryland reinstated the attorney seven years after his resignation. Pennsylvania reinstated him in August of this year. He is now of counsel to a highly-regarded Maryland law firm. "Despite [his] significant losses, his fortitude and belief in the American judicial system remains solid...[d]espite all adversity, [he] never lost hope that the truth would be revealed, which it eventually was." (Mike Frisch)
Guilt Through Association
The Pennsylvania Supreme Court recently suspended an attorney by consent for 15 months with some unusual provisions that will be in place for four years: the attorney must not facilitate unauthorized practice by a person named in the suspension order, may not employ that person in her law practice and must bar that person from the premises of her law office during business hours. The named individual was suspended from practice for three years in 2006. (Mike Frisch)
Misconduct Outside Law Practice Not A Mitigating Factor
An attorney admitted to practice in New Hampshire in 2004 was involved in an auto accident when he hit a parked car while backing out of the Hampton Plaza. The accident occurred exactly one month after his New Hampshire admission. He falsely reported that he was driving another (insured) van at the time of the accident and pleaded guilty to misdemeanor insurance fraud. The Supreme Court Professional Conduct Committee imposed a six-month suspension.
On appeal, the New Hampshire Supreme Court increased the suspension to two years, effective to the date when the attorney had been suspended based on the conviction. While there were a number of mitigating factors, the fact that the conduct took place outside of the practice of law did not mitigate the sanction: "there is a distinction to be made between those cases where the attorney's actions 'directly threaten his clients' and those that do not...But that line is drawn for the purpose of increasing the sanction given to those who breach the special fiduciary duties created by the attorney-client relationship, and not for lessening the sanction affixed to an attorney who is acting as a private citizen." (Mike Frisch)
The Civil Suspense File
The Georgia Supreme Court disbarred an attorney who had defaulted on two complaints alleging that he had let civil complaints be dismissed with prejudice and had failed to advise the clients concerning the dismissals. The case is unremarkable except for the charming terminology of the Georgia courts: one of the cases had been placed on the "civil suspense file...with leave for the case to be reopened if not settled." I guess I'd be nervous if my case was on the civil suspense file. (Mike Frisch)
October 29, 2007
I'm Ready For My Closeup, Mr. De Mille
The Oregon State Bar has issued a formal opinion that addresses a series of hypothetical questions concerning pretrial publicity in a variety of contexts. Noting that Oregon Rule of Professional Conduct 3.6 "is clearer about what it does not prohibit than it is regarding what it does" the opinion concludes there can be no violation of the rule unless (1) there is an actual matter being investigated or litigated (2)the lawyer or someone acting at the lawyer's direction is a participant (3)the lawyer knows or reasonably should know that the statement will be "disseminated by means of public communication"(4) there is an imminent fact-finding process in the matter and (5) the lawyer knows or reasonably should know that the statement "will have a substantial (i.e., 'highly probable' ) likelihood of materially (i.e. 'seriously') prejudicing that imminent fact-finding process."
A footnote observes that "a lawyer disciplined on the theory that his or her statements concerning the claim or defense exceeded what was permissible under Oregon RPC 3.6(b) would have a potential defense that the rule is unconstitutionally vague."(Mike Frisch)