October 29, 2007
A Messy Case
A law firm was hired to represent a client in "a myriad of legal challenges for [the client]" after her children had been taken into protective custody. The Tennessee Department of Children's Services ("DCS") found "[t]rash...throughout the [client's] house, dog feces and urine...on the floor, medical syringes and drugs...throughout the house in reach of the children, a variety of animal medications including questionable controlled substances...and an extreme malodor of feces and urine throughout the home." DCS had removed approximately 216 dogs and 14 cats from the client's home. The firm later terminated the representation and sued for legal fees. The client counterclaimed alleging neligence, legal malpractice, breach of contract, fraudulent misrepresentation and promissory fraud. The trial court granted summary judgment on the counterclaims and the client appealed.
The Tennessee Supreme Court held that summary judgment on the legal malpractice claim was proper. Although the client had produced two experts, one was "decidedly unfamiliar with the facts" and his opinion was properly excluded. The other expert was the client's ex-husband, who "is no longer a practicing attorney" and thus his opinion was properly excluded on that basis. However, summary judgment on the breach of contract claim was improperly entered based on the alleged failure to file a federal court action on the client's behalf. The claim of billing fraud may be asserted in defense of the law firm's action for unpaid fees. (Mike Frisch)
Reinventing The Wheel
A D.C. hearing committee recently issued a report (which I assume was posted on the D.C. Bar's web page in error as it may be found in the listing of Board reports) that takes 38 pages of careful analysis to reach the result advocated by Bar Counsel as a disposition without any hearing. The lawyer had been suspended for six months in New York for a misdemeanor insurance fraud conviction. New Jersey and Florida promptly imposed reciprocal discipline. The lawyer has long since been reinstated in New York, New Jersey and Florida. In the District of Columbia, this would be far too efficient.
The D.C. Board ordered a full hearing into whether the offense involved moral turpitude, which would require disbarment under a provision of the D.C. Code. Bar Counsel did not charge moral turpitude and the hearing committee did not find it. The committee complains that its "ability to explore the underlying facts...was constrained by the limited record developed by the parties at the hearing." Well, the conduct took place in New York in 2001 and New York held a full hearing. What new evidence did the committee expect Bar Counsel to uncover six years after the fact?
The lawyer has already been suspended on an interim basis in D.C. for over 18 months and the matter must still be reviewed by the D.C. Board and Court of Appeals. (Mike Frisch)
Empirical Legal Studies Blog Takes Aim at 2L Transfer Students and Employment Issues
At ELS blog here, IU's Bill Henderson has an excellent post (and great exchanges with thoughtful commenters, many of whom are past transfer students), on the increased rate of admitting transfer students (to game USN&WR rankings) and the effect on job interviews and employment of the new crop. Well worth a look. Also raised is something Jeff has talked about before: "brand dilution." [Alan Childress]
Thy Client's Keeper
The D.C. Board on Professional Responsibility has recommended reciprocal discipline in a case where Maryland had reprimanded the lawyer and ordered a two-year probation under the supervision of a practice monitor. The case is unremarkable except for the fact that the Maryland Court of Appeals appointed the sanctioned lawyer's own counsel as the practice monitor. The D.C. Board recommends the same monitor, with some reservations: "We note...some concern, in that [the appointed monitor] served as counsel to Respondent in the Maryland proceeding before being appointed as his practice monitor. This...raises an issue as to whether a practice monitor who discovered a violation would be hindered in his duty of candid reporting because of a feeling of loyalty to a client. [The lawyer] did not serve as counsel to Respondent in these reciprocal D.C. proceedings. If he believes he cannot discharge his obligations as practice monitor unencumbered by any duty of loyalty to Respondent, then he should decline the appointment." (Mike Frisch)
Swift But Lenient
A bar discipline case from Arkansas was resolved approximately three months after the complaint charging misconduct had been served. In light of the fact that there was a contested hearing and report, such speed in bar discipline matters is almost unheard of.
The case involved a lawyer who represented a husband accused of failing to give his child allergy medication. The mother sought to relocate out of state with the child and cut off the father's visitation rights. The husband claimed that he did not have access to the child's medical records. The lawyer was found, among other things, to have knowingly assisted the husband in offering false testimony in court and failing to take remedial measures that are required when false evidence is offered to a tribunal. The Supreme Court Committee on Professional Conduct imposed the sanction of a caution along with costs and a $500 fine. (Mike Frisch)