November 10, 2007
How Reciprocal Discipline Is Supposed To Work
In contrast to yesterday's jeremiad against a D. C. Board on Professional Responsibility report comes a reciprocal case from West Virginia based on an indefinite suspension imposed in Maryland. Maryland had found escrow violations but imposed indefinite suspension rather than disbarment. The West Virginia Supreme Court of Appeals rejects the sanctioned lawyer's attempt to retry the underlying facts. Further, the court rejected the contentions that identical discipline would result in grave injustice or that there were due process violations in the Maryland proceedings.
This is how reciprocal discipline is supposed to work-- there is no indication here that West Virginia authorities think they know more than Maryland about a matter tried in the Maryland bar disciplinary system. Further, there is no indication that West Virginia wants a lawyer found to have engaged in serious misconduct to relocate to West Virginia on terms more lenient than imposed in Maryland. It's all about public protection, which is the reason that bar discipline is supposed to exist. (Mike Frisch)
False Report Results In Censure
A Pennsylvania lawyer accepted public censure by agreement with disciplinary counsel for falsely reporting to police that he, rather than his son, was driving an automobile involved in a single-car accident. He had been convicted of making a false report. The lawyer's motivation--a desire to protect his child--seems a bit more sympathetic than your average case of lawyer dishonesty. (Mike Frisch)
November 9, 2007
Conflicts Of Law and Malpractice
A New York law firm represented a Florida resident in the sale of a New Hampshire corporation that had its principal place of business in New York (this sounds like a law school conflicts of law exam question). The sale was to another corporation that was represented by seperate counsel. After the sale, the client was employed by the buyer corporation.
Litigation was brought against the buyer corporation by a third party claiming breach of contract. That lawsuit led the buyer to invoke an indemnification agreement and fire the client. The client then brought two arbitration actions against the buyer. The law firm represented represented the buyer in the third party action, after seeking but not obtaining the (now former) client's consent. The arbitration between the client and buyer later settled and the client sued the law firm for malpractice, contending that the firm had improperly represented adverse interests.
The New York Supreme Court granted the law firm's motion to dismiss, determining that Florida law applied and the claim was not viable under Florida law. The Appellate Division for the First Judicial Department ordered the complaint reinstated. First, the claim is well-pleaded under either New York or Florida law. In any event, New York law applies because "the duty forming the basis for plaintiff's claims arose from defendant's representation of plaintiff in New York and New York has an interest in regulating the conduct of its attorneys." (Mike Frisch)
My Embracery You
From the ABA Journal online is this story of a civil rights attorney in Virginia charged with the very old (Magna Carta era) crime of "embracery." She is alleged to have tampered with grand jurors. My punny title above is an homage to the titular style of Mike, who obviously has done the heavy lifting on this blog since summer. Thanks, Mike.
Here is the original story from dailyprogress.com. [Alan Childress]
A Clear And Present Danger
in April 2006, the Maryland Court of Appeals disbarred an attorney who had falsely represented to his firm that he had filed an appeal, fabricated court documents and filed periodic reports with the firm to perpetuate the deception, faked a phone call to the clerk's office and confirmed that the non-existent appeal remained pending. He did not present , so far as I can determine, any significant mitigating evidence.
This lawyer also is admitted in the District of Columbia. In a report filed November 6, 2007 (not yet available in electronic format), the Board on Professional Responsibility proposes that the attorney be permitted to practice in D.C. with no showing of present fitness. The Board reads a recent precedent as compelling a significantly more lenient sanction for serious dishonesty that persuades Maryland that the proper sanction is disbarment. Here, the Board finds that what it calls "intra-firm" dishonesty "does not imperil public confidence in the integrity of the profession in the same way as dishonesty directed at clients, third parties or the courts." Really? Also, the Board says the conduct was not criminal. Yes, actually forgery is a crime. The Board further finds that the lawyer's untimely report of the Maryland order to D.C. was mitigating, notwithstanding that all the lawyer did was comply with a court rule.
Then we get to fitness. Even though there were no proceedings in D.C., the Board treated the fitness issue as if there had been. Finding a lack of "clear and convincing evidence" of unfitness, the Board recommends an 18 month suspension back-dated to November 2006 (when the attorney was suspended pending resolution of the reciprocal proceeding). If adopted, the lawyer will be automatically reinstated when the D.C.Court of Appeals acts (which will take more than six months).
D.C. and Maryland share disciplinary authority over a great number of lawyers. This Board report is part of a truly disheartening and dangerous trend toward D.C. becoming the haven for every dishonest lawyer disbarred in Maryland. Does that inspire public confidence in the integrity of the profession?
Note that the lawyer also is admitted in Pennsylvania. It will be interesting to see if that jurisdiction will be as welcoming to a lawyer disbarred for serious dishonesty as D.C.'s Board. (Mike Frisch)
November 8, 2007
Disbarment Without A Hearing
The New York Appellate Division for the First Judicial Department disbarred an attorney convicted in federal court of various wire fraud and money laundering offenses. Disbarment was automatic notwithstanding the fact that there is no equivalent state offense. A review of the plea admissions and the charging document (which the court may consider in determining the issue of similarity) persuaded the court that the crime was "essentially similar" to the New York offense of fraud in the first degree and that summary disbarment was appropriate.
In a second matter, the court used the same analysis to disbar another attorney convicted in federal court of offenses that equated to the crime of offering a false instrument for filing in the first degree. (Mike Frisch)
Decisions By Coin Toss
Courtesy of Above the Law comes a judicial misconduct case from Virginia. A judge was ordered removed from the bench for directing a litigant in a custody matter to twice lower her pants to display a wound, making an ex parte telephone call to a hospital in the same matter and deciding two contested cases by coin toss. The violations were deemed "grave and substantial. A judge's act of tossing a coin to decide a legal issue...suggests that courts do not decide cases on their merits but instead subject litigants to games of chance in serious matters without regard to the evidence or applicable law." The other matter was "even more egregious... an obvious lack of concern for [the litigant's] personal dignity or the dignity of the judicial proceedings."(Mike Frisch)
Incompetent or Unethical?
A recent decision of the Illinois Review Board underscores the distinction between marginal and unethical performance by an attorney. The lawyer represented a client in a case charging aggravated sexual assault. The contested issue was the quality of the lawyer's attempt to impeach a state's witness. The board upheld a finding that the Administrator did not meet the burden of proof for an ethical violation in the lawyer's representation:
"Incompetence and neglect are not identical, and a finding that an attorney engaged in neglect does not require a finding that he or she was also incompetent. In re Slaughter, No. 97 CH 82 (Review Board Nov. 9, 1999), approved and confirmed, No. M.R. 16460 (March 22, 2000). Not every attorney error constitutes incompetence. In re Mason, 122 Ill. 2d 163, 169-70, 522 N.E.2d 1233, 119 Ill. Dec 374 (1988). Conduct, even if legal malpractice, is not always a disciplinary violation. Mason, 122 Ill. 2d at 169-70, 522 N.E.2d 1233, 119 Ill. Dec 374. Similarly, a finding that a defendant has not received the effective assistance of counsel does not automatically translate into an ethical violation. In re Washington, No. 99 CH 58 (Hearing Board Dec. 31, 2003), affirmed in part, sanction modified, No. 99 CH 58 (Review Board Oct. 27, 2004), approved and confirmed, No. M.R. 19844 (Mar. 18, 2005); In re Algee, No. 96 SH 90 (Hearing Board June 30, 1997); In re Gursel, No. 93 CH 539 (Hearing Board Feb. 7, 1995). Instead, the respondent’s performance as a whole must be considered. See Mason, 122 Ill. 2d 163, 522 N.E.2d 1233, 119 Ill. Dec 374.
Here, there were a number of errors and certain specific points as to which [the lawyer's]’s performance was properly criticized. However, given his performance as a whole, the Hearing Board’s finding that the Administrator did not prove incompetence is not against the manifest weight of the evidence.
[The lawyer] articulated a cogent theory of defense, in opening statement and closing argument. He cross-examined prosecution witnesses in a manner consistent with that theory."
This case reinforces the idea that a disciplinary prosecution should not second-guess an attorney's exercise of professional judgment. Lawyers are far more likely to be sanctioned for inaction rather than poor performance.
The board found other violations and recommends a six-month suspension. (Mike Frisch)
Suing Opposing Counsel
A brewery owner who sought financing to expand his business entered into an agreement with a friend to seek investors in exchange for a finder's fee. The deal that the friend attempted to arrange collapsed and the brewery owner sued the friend and his attorneys on a theory of tortious interference. The case was thrown out on summary judgment and the defendants prevailed at trial on counterclaims asserting bad-faith litigation. The judgments were affirmed in 2003.
The D.C. Court of Appeals issued an opinion today that, among other things, affirmed Rule 11 sanctions against the two lawyers who brought the original suit for their conduct in suing opposing counsel. Quoting the finding of the trial judge, who ordered sanctions of $50,000: "the professional conduct of [the two attorneys] to be well beyond the pale. These two experienced lawyers knew, or had to know, they did not have sufficient evidence to make a case for tortious interference...[one of the lawyers] should have removed his blinders, faced up to the insubstantiality of the claim...and dismissed it from the case."
The court here held: "Only in rare circumstances will a party be justified in suing his opponent's lawyer. An attorney who pursues in good faith his or her client's case on a matter fairly debatable in the law cannot be held liable to an opposing party. Similarly, there can be no conspriracy when an attorney acts within the scope of his employment...[that is,] where an attorney's advice or advocacy is for the benefit of his client and not for the attorney's sole personal benefit." (citations and internal quotations omitted)(Mike Frisch)
November 7, 2007
On November 15-16, Georgetown University Law Center will host the 4th Annual Advanced E-Discovery Institute: The Revised Federal Rules- A Year Later. The program information is linked here. (Mike Frisch)
Concurrent And Imputed Conflicts Draw Censure
Two law partners who had represented both the University of Idaho Foundation ("UIF") and an entity that agreed to act as project manager in a property development pursuant to an agreement with UIF were censured by stipulated resolution for violating Idaho Rules 1.7 (concurrent conflict of interest) and 1.10 (imputed disqualification). The lawyers had failed to secure properly informed consent to the conflicted representations: one partner was sanctioned for "failing to adequately and timely consult with and explain...the implications and risks of his firm's representation of another client in a common transaction and to receive [UIF's] informed consent of such representation." There is similar language with respect to the conduct of the other partner.
A link to the summaries of the findings comes from the web page of the Idaho State Bar. The sanction was imposed by the Idaho Professional Conduct Board. (Mike Frisch)
Two Out, Two In
The Oklahoma Supreme Court ordered reinstatement in two matters, neither of which involved suspension for ethical misconduct. One lawyer had resigned voluntarily to relocate to his home state of Wisconsin. He satisfied the CLE requirements for reinstatement and established good moral character and present competence to practice. The other had been suspended for non-payment of bar dues. His reinstatement was ordered after a hearing before the Trial Panel of the Professional Responsibility tribunal.
Choose Your Lawyer Wisely: Trust But Verify
A lawyer in Maryland was retained to prosecute a personal injury case by the victim of a rear-end collision. Three years after being retained, he filed the case two days before the statute of limitations ran: "what, if any, effort [the attorney] made on behalf of [the client] in the interval between his having been retained, and the filing of the complaint, is not clear from the record." The lawyer neglected the case and lied to the client, failing to advise her that he had been indefinitely suspended and that her case had been dismissed with prejudice. She learned of the suspension when she filed an ethics complaint and learned of the dismissal by reviewing the court file.
She sued the lawyer and obtained (an uncollected) judgment. She sought to reinstate the underlying suit. The Maryland Court of Special Appeals held that counsel's misconduct was not extrinsic fraud, which is required to vacate the dismissal. Further, "nearly three years had passed since her original claim had been dismissed, and nearly 14 months had passed since she learned of the dismissal....appellant must act expeditiously to vacate a judgment." The client had a duty to keep herself informed about the progress of her case. (Mike Frisch)
Return To Practice
The Pennsylvania Supreme Court granted the reinstatement petition of a lawyer who had been disbarred a decade ago for misappropriation of client funds. He had been convicted of seven counts of theft by deception as a result. The petitioner has been treated for bipolar disorder and alcoholism (which appeared to be the root cause of the violations) and appears to be secure in his treatment and sobriety. While there is no guarantee of continued sobriety, the board and court were sufficiently impressed with his favorable evidence to permit his resumption of law practice. He has been employed in a number of capacities before obtaining employment as a paralegal and had made restitution of the misappropriated client funds. (Mike Frisch)
November 6, 2007
A South Carolina lawyer became intoxicated in a bar, walked to a fraternity party and snorted "one or two" lines of cocaine. He was observed by a police officer and arrested. Notwithstanding his entry into a treatment program, the South Carolina Supreme Court had ordered that he be suspended on an interim basis. He had also suggested that false statements be made to two clients to conceal his entry into rehab, but the statements were not made.
The court rejected the recommendation of its Commission on Lawyer Conduct for an admonition with costs. Rather, the court suspended the lawyer for 90 days. (Mike Frisch)
Act Of Betrayal
The D.C. Board on Professional Responsibility has recommended the reciprocal discipline of court admonishment of an attorney who filed a motion to withdraw from representing an applicant for bar admission. The motion stated: "[the sanctioned attorney] did not believe that [his client] had the character and fitness to serve as a bar member and that [he] had not paid his attorney's fees."
The Florida court found that the lawyer had violated his duty of confidentiality, engaged in a conflict of interest and used an improper method to seek his desired withdrawal. Admonishment seems a tad light for such a fundamental ethics breach.
I mention a similar D.C. case in a comment to this post. The case is linked here. (Mike Frisch)
Malpractice Coverage Disclosure
The California State Bar's Board of Governors will address the "thorny issue" of whether bar members will be required to disclose that they do not carry malpractice insurance. The proposal would obligate lawyers to disclose their non-insured status to both clients and the bar. According to the linked report, the issue will be considered at the November 9 Board of Governors meeting
Stiffing Expert Draws Agreed Suspension
A disciplinary case summary from the web page of the Virginia State Bar:
"On October 26, 2007, the Virginia State Bar Disciplinary Board suspended [an attorneys] license to practice law for fourteen days, effective December 15, 2007. [The attorney] was found to have committed misconduct by ordering a stop-payment on a check issued to a prospective expert witness after the witness had delivered a copy of her report. This is an agreed disposition of misconduct charges against [the attorney]." (Mike Frisch)
Ineffective Assistance Claim Not Waived
A defendant named Mac The Hung was convicted of malice murder and three counts of aggravated assault. He sought to raise the issue of ineffective assistance of counsel on appeal. The Georgia Supreme Court held that the issue had not been waived. The defendant had been represented by a series of public defenders. Because one public defender cannot be expected to raise ineffectiveness claims against a colleague, the court concluded that the defendant had raised his claim in a timely manner: the claim "may not be barred by the failure of a succession of attorneys from the same public defender's to raise it." (Mike Frisch)
Pay The Ticket
North Carolina has a statute that allows a trial court to order a defendant insurance company to pay the attorneys fees of an insured plaintiff where the recovery is less than $10,000 and the court concludes that the insurer has engaged in an "unwarranted refusal" to pay the claim. The North Carolina Court of Appeals upheld a trial court order requiring the insurer to pay $25,000 to plaintiff's lawyer under the statute. (Mike Frisch)