November 17, 2007
Malpractice Claim Dismissed
A dissatisfied client in a divorce case claimed that her lawyers had overcharged her and mishandled the case. There was a fee arbitration that resulted in a substantial award to the lawyers. The client then filed a complaint with disciplinary counsel and sued for malpractice.
The New York First Department held that "the determination fixing the value of the services necessarily determined that there was no malpractice." The malpractice claim is barred by the arbitration award and the principles of collateral estoppel. (Mike Frisch)
A Good Idea
An announcement from the web page of the California State Bar:
Annual lawyer discipline hearings scheduled
Attorneys and members of the public will have an opportunity next month to offer comments about attorney disciplinary procedures, competency and admissions procedures at hearings in Los Angeles and San Francisco.
The San Francisco hearing will be held Dec. 4 at the bar offices at 180 Howard St. The Los Angeles hearing is scheduled for Dec. 13 in the bar’s offices at 1149 South Hill St. Both hearings begin at 10 a.m.
Individuals who wish to speak or offer written materials should contact Doug Hull at 415/538-2015 or firstname.lastname@example.org by Nov. 30.
Every bar should do this every year. And they should listen to the concerns that are expressed. (Mike Frisch)
November 16, 2007
Untimely (And Unchivalrous) Response
The Minnesota Supreme Court disbarred an attorney for his participation in two shady real estate investment deals in which his client was left without recourse to protect the investment. In one matter, the lawyer had converted rental income and misled the client to believe there was a refinancing when in fact the property was being sold. The second property also was sold, and to the same purchaser. The lawyer was charged with dishonesty and a prohibited business transaction with a client.
The lawyer did not file a timely answer to the charges and then sought to vacate the determination that the misconduct be deemed admitted. The court rejected his untimely attempt to defend on the basis of a general denial:
"An attorney against whom a petition for disciplinary action has been filed has 20 days after service of the petition to file an answer. Rule 13(a), RLPR. If the attorney fails to file an answer within the 20-day period, the allegations in the petition “shall be deemed admitted.” Rule 13(b), RLPR. Respondent filed his motion to vacate and proposed answer after we had granted the Director’s motion for summary relief and more than eight weeks after respondent was served with the petition. Neither respondent nor the Director cites any authority for vacating, over the objection of the Director, an order of this court deeming facts to be admitted as a result of a failure to answer in a timely manner. In addition to failing to offer a credible explanation for his delay, respondent’s proposed answer is effectively a general denial and provides no response to the detailed and disturbing facts alleged by the Director. Under these circumstances, we decline to vacate our order for summary relief, and we accept the facts as stated in the Director’s petition as controlling."
The court also rejected the lawyer's attempt to place the blame on another attorney who happens to be his wife. She is charged in a separate bar proceeding. (Mike Frisch)
The New York First Department censured an attorney who had (1) withdrawn a fee from escrow while a dispute over the fee was ongoing with prior counsel and (2) neglected an unrelated case. The lawyer also had promised to personally satisfy a lien in the neglect case and presented a check that had bounced. He later made the payment.
The court explains its sanction rationale:
"We find that, in light of the pre-hearing stipulation and the evidence presented at the liability and mitigation hearings, the findings of facts and conclusions of law regarding respondent's misconduct are supported by the record, and should be confirmed. Public censure is the appropriate sanction under the circumstances, despite the fact respondent received two prior admonitions, given all of the mitigation evidence, including respondent's pro bono work, that his wife's illness often caused him to be absent from his office during the time of his misconduct, his remorse for his non-venal wrongdoing, reduction in his caseload and multiple alterations to his office procedures to prevent any future neglect, and that he made amends to Leifer, the complainant. Although respondent's payment of the worker's compensation lien was delayed, censure is still appropriate." (citations omitted) (Mike Frisch)
The Florida Supreme Court has adopted a registration program for paralegals. Participation is voluntary and the court specifically disclaims any intent to "regulate" paralegals who are registered under the program. Rather, "we believe the program will inure to the benefit of the public in the same way the Florida Rules for Certified and Court-Appointed Mediators inured to the public's benefit and we are, therefore, comfortable with approving this program." (Mike Frisch)
November 15, 2007
I'm Not Missing - I am Michigan Man
A loyal reader dropped me a note today wondering if I had disappeared. Nope. Just busy. On the occasion of my flying off to Ann Arbor to see my son and attend the Michigan-Ohio State, I have decided to come out and reveal that, yes, in fact, I am Michigan Man. [Take that, Rapoport.]
New Casebook on Legal Malpractice Law
Posted by Alan Childress
The teaching of an advanced class in legal ethics and responsibility, or a specialized course on lawyer liability as such, just got a boost from this new publication: Legal Malpractice Law: Problems and Prevention.
It is by Susan Fortney (Texas Tech) and Vincent Johnson (St. Mary's).
Tulane used to teach a specific course in the subject (taught by Manuel Ramos) and it was well received by the students.
From the West website:
Description: Legal Malpractice Law is a practical, problem-oriented text designed for use in elective courses on Legal Malpractice, Professional Liability, Advanced Legal Ethics, or Advanced Torts, or in required Professional Responsibility classes that want to focus more on malpractice than on discipline. Each chapter includes explanatory text that relies on recent cases, code provisions, statutes, and commentary. A small number of tightly edited principal cases offer insight into the current state of legal malpractice law. The problems, including many that are based on actual controversies, deal with liability concerns that practitioners encounter. The book integrates malpractice prevention lessons. Relevant ethics rules are discussed. A comprehensive teacher’s manual is available.
The North Dakota Supreme Court affirmed a conviction for driving while intoxicated notwithstanding the fact that the car was out of gas when the authorities came upon the defendant. The prosecutor made the following argument:
"During his rebuttal closing argument, the prosecutor said, "Balderdash. Smoke and mirrors. That's what you got. Smoke and mirrors." "Balderdash" is defined as "nonsense." Webster's New World Dictionary, 106 (2d ed. 1980). [Defendant's] counsel did not object at trial to these comments but argued on appeal it was an obvious error affecting her substantial rights."
Defense counsel contended that he was unaware of the meaning of "Balderdash." The court disapproved of the prosecutor's argument but found that the improper comment did not affect substantial rights, as the jury probably didn't know what it meant, either.
Not too long ago, my views about certain actions of the D.C. Board on Professional Responsibility were dismissed as "Poppycock." I had to look it up, although I was pretty sure it was not intended to be a compliment. Turns out one of the synonyms is Balderdash. (Mike Frisch)
An attorney already serving an interim suspension was permanently disbarred by the Louisiana Supreme Court. The charge that led to this result involved a client in a criminal matter. The lawyer "told [the client] that if he paid [the lawyer] $18,000, he would pay off a judge and the district attorney to obtain a more lenient sentence of probation..." The comment was captured on tape. The lawyer advised the client to plead guilty when he was "unable to pay the full $18,000." The client complained after getting a sentence that was double the amount the lawyer had promised.
Permanent, rather than ordinary, disbarment was imposed because, even though there was no actual bribe, "[the client] was clearly misled, and chose to forego trial based on [the attorney's] representations that he could influence the district attorney and the judge presiding over his criminal matter. Such conduct caused severe damage to the profession in eroding the public's trust in the bar and the judiciary." (Mike Frisch)
New York Reciprocal
The New York Appellate Division for the Third Judicial Department considered the question of reciprocal discipline in a matter where the U.S. Court of Appeals for the Ninth Circuit suspended an attorney for 18 months "for conduct unbecoming a member of the bar for, among other things, failing to comply with [Ninth Circuit] rules." Without setting forth the circumstances it considered, the court determined that the "appropriate measure of discipline" was a censure.
I am less troubled by this action than recent reciprocal cases we have posted because discipline from federal courts is often summary and harsh. It is a different matter to be suspended by a state high court, which is a far greater restriction on practice than an order from a federal court. However, it would have been helpful here for the court to explain its result. (Mike Frisch)
Substantially Different Discipline
Is a five-year suspension with proof of fitness for reinstatement substantially different from disbarment, which is a five-year suspension with proof of fitness for reinstatement? Yes, according to the D.C. Board on Professional Responsibility. Adopting the Board's recommendation, the D. C. Court of Appeals comments that "whether this is correct or not is debatable, given that the only difference between the Massachusetts discipline...is the opprobrium which attaches to the term disbarment." The court did not decide the issue because no exceptions were filed. (Mike Frisch)
November 14, 2007
A Private Matter
An attorney was privately reprimanded by the Indiana Supreme Court (the case is styled In Re Anonymous). The attorney had hired his spouse as the accountant and bookkeeper for his two-person law firm. He exercised no control or supervision over her work. During a period of about five months, the spouse misappropriated over $22,000 by forging the lawyer's name to checks drawn on the trust account. When the lawyer and his law partner discovered the defalcations, she admitted the misconduct and made restitution. The court found no aggravating factors. (Mike Frisch)
Judges Aren't Umpires
An attorney who had been suspended from practice for ethical violations on two prior occasions was suspended for 90 days by the Wisconsin Supreme Court. The attorney and disciplinary counsel had agreed that the suspension is the appropriate sanction where the lawyer engaged in misconduct involving "overbilling [the lawyer's] client...by not showing proper credit for the client's payments and by overstating the amounts due." Given the prior instances of what appear to be pretty serious misconduct, it appears that this lawyer got a break. Guess Wisconsin does not subscribe to a "three strikes, you're out" philosophy for lawyer discipline. (Mike Frisch)
Prohibited Transaction Charged
The Illinois ARDC recently filed and served charges alleging that a lawyer had engaged in a prohibited business transaction. The lawyer is charged with establishing a trust for the benefit of the client's developmental disabled child. He was named as co-trustee. After the client died, he arranged with the other co-trustee to loan him $80,000 from trust funds, secured with real property as collateral. He resigned as co-trustee but continued to provide legal services to the trust. He caused the real property to be refinanced four times, declared bankruptcy, and had the debt discharged. The trust is out over $79,000.
If these charges are proven, the conduct is as bad as intentional misappropriation (see today's earlier post) and merits the same sanction. (Mike Frisch)
The Most Important Rule
The special nature of Rule 1.15--and the consequences of knowing and intentional misuse of client funds--is at the heart of a recent decision of the Maryland Court of Appeals. The case appears to involve garden variety misconduct but at second glance may generate some sympathy for the lawyer. He had practiced honorably for many years until 2003, with a practice that focused on tax and estate matters. In 2003, he experienced severe cash-flow problems, primarily as a result of an inability to collect over $150,000 in fees for his services in connection with failed bankruptcy reorganization plans. At the time, he was paying college tuition for two children.
His response was to rob Peter to pay Paul from entrusted funds. He was able to pull this off for two years until a bounced escrow check put him on Bar Counsel's radar screen. His initial response was to submit doctored records to conceal the misconduct. He admitted the misconduct in the disciplinary proceedings. The circuit judge who heard the case found the following mitigating factors: no financial harm to any client, all obligations met in a timely manner, no intent to defraud, extensive pro bono activities and sincere remorse.
Bar Counsel sought disbarment; the lawyer proposed an indefinite suspension. The court imposed disbarment: even if the lawyer lacked criminal intent, the conduct was knowing and intentional. The mitigating factors are not sufficient to avoid the ultimate sanction. (Mike Frisch)
November 13, 2007
In And Out
The Pennsylvania Supreme Court granted reinstatement of an attorney who had been disbarred on consent in 1997 as a result of a conviction for wire and mail fraud. In an unrelated matter, the court denied reinstatement of an attorney suspended in 2004. The petitioner failed to establish present good moral character in that he had made false material statements in the reinstatement process. One does not ever get favorable action on a reinstatement petition without demonstrating candor in the process. (Mike Frisch)
Paying Your Dues
An attorney was suspended in South Carolina for non-compliance with CLE requirements and failing to pay annual dues "due to financial difficulties." He continued to work as a contract attorney on a document review project for about 10 months after the suspension. Thereafter, he worked as a paralegal, telling the firm that he was on inactive status. He "misunderstood' his true status and was unaware of a rule that "prohibits a suspended lawyer from working in any capacity connected with the law."
Problems began anew when he got reinstated. He failed to respond to a bar inquiry, citing depression as the cause. An agreed disposition of a two-year suspension, nunc pro tunc to his interim suspension entered March 11, 2005, was imposed by the South Carolina Supreme Court. (Mike Frisch)
Intoxication As Insanity
In a recent criminal case decided by the District of Columbia Court of Appeals, the court ordered a new trial for a mother convicted of first-degree felony murder of her child. The defendant put on an insanity defense. The government attacked her defense by offering evidence that she had asserted her Miranda rights. The court held that the admission of the rights card was "error, which was not harmless beyond a reasonable doubt."
There was conflicting evidence about the defendant's sanity and the implications of her prior (and arguably current) use of PCP. The court engages in a thoughtful discussion of "where the defense of voluntary intoxication ends and the insanity defense begins." Where mental illness is caused by drug abuse, "the defense must demonstrate that as a consequence of the mental condition, the accused could not appreciate or conform to the requirements of the law." the defendant failed to establish a prima facie case of such "settled insanity."
The case got me thinking of how much more expansive the bar disciplinary systems generally are in considering alcohol and drug addiction as mitigation for ethics violations. There is general agreement that bar programs that provide treatment to addicted lawyers are a good thing. There is less agreement that a free pass for rehabilitating lawyers is in the public interest. (Mike Frisch)
November 12, 2007
More On Reciprocal Discipline
The Mississippi Supreme Court issued an opinion in line with the vast majority of jurisdictions in imposing virtually identical reciprocal discipline on an attorney who had been publicly censured in Tennessee. While the court "look[s] with extreme disfavor on a lawyer's conversion or commingling of client's funds...we conclude from the record before us that there is no reason to stray from the discipline imposed by the Supreme Court of Tennessee." There rarely is any legitimate reason to second-guess the jurisdiction that actually conducts the proceeding. I'd have a lot fewer gray hairs if D.C. had seen it that way when I was with Bar Counsel. (Mike Frisch)
Improper Argument Not Reversible Error
The North Carolina Supreme Court affirmed the conviction of Michael Peterson in the first-degree murder of his wife. The court found that the prosecutor had crossed the line of permissible argument in closing by repeated arguments that the state's expert witnesses were more credible because they work for the state, in contrast to the defense experts.
Some highlights of the argument:
" [The state's experts]. You know what? They're state employees. Just like most of us that work here in the courthouse. And they work for your state. They work for your state, North Carolina.
[Defense Counsel]: Objection.
THE COURT: Overruled.
[Prosecutor] : Not Chicago, Illinois. Not Connecticut. They work for us. They gave you truthful and accurate information. And you know what? They didn't get paid not one penny extra to come in here. [One state's expert] should have, my goodness what he had to go through on the witness stand, but, no, he didn't get an extra penny.
They might not have written books that they're signing and autographing for everybody. They might not travel to all of the rest of the states and give seminars and lectures. They're not allowed to, actually. It's not that they're not good enough to, it's they're not allowed to. They might not have appeared on Larry King Live or Court TV. But you know what? They are tried and true. Tried and true. Because they work for us.
[Defense Counsel]: Objection."
"Now what further distinctions can be drawn about the experts? Well, one thing about [the state's experts] is they have been in this very courtroom before. They have. They've testified in front of people just like you. Durham County juries.
[The defense experts], they've never been to Durham, as far as I know, in this courthouse before to testify, and they'll probably maybe never come back here again.
But after the tents and the vans are removed from outside of the courthouse, after all of the reporters and the cameras are gone, after all these cords and tape and everything are taken up from the floor, after we put -- get the box down, after the microphones are all removed, Court TV goes to cover another case, after we get our courthouse back to normal, [the state's experts] will be back in this courtroom again. They will. There will be other cases. Other murder cases. They'll be in that very witness stand again. Because that's what they do for a living. That's their livelihood. That's how they pay their bills."
The state conceded that the closing argument was improper. The court accepted the concession but found the error insufficient to overturn the conviction. (Mike Frisch)