Wednesday, December 12, 2007
A decision today of the Ohio Supreme Court shows a different approach to sanctioning escrow violations than that of the Maryland Court of Appeals as reflected in the prior post. For eight years, the attorney had operated his business and personal affairs out of his escrow account. The IRS had shut down his business account. He "repeatedly overdrew his escrow account" and "used clients' money for his own or business purposes." He also failed to pay a third-party medical provider.
The court considered as mitigation "good character and that he worked pro bono for his church" but further noted that he "showed little appreciation for why the rule against commingling exists." Also, "[his] bookkeeping records were not merely in disarray or incomplete--they simply did not exist." Rather than disbar (or stay the entire suspension, as the Board had proposed), the court suspended the attorney for one year with six months stayed. To obtain reinstatement, he must meet conditions that include a five-hour course in office management. If reinstated, the attorney must serve a one year probation.
Is a five-hour course sufficent to correct these practice deficiencies? (Mike Frisch)
The Maryland Court of Appeals disbarred an attorney for misconduct in two client matters. The attorney did not escrow advanced fees, provided incompetent representation in one matter, and lied to both clients about the status of their cases. The court rejected the suggestion that a "little white lie" (the lawyer told the client the action had been filed when he intended to do so shortly thereafter) did not violate the ethics rules. Further, the court makes clear that the failure to escrow advanced fees and the use of such fees constitutes a knowing misappropriation, for which disbarment is the appropriate sanction. (Mike Frisch)
The Illinois ARDC has filed charges against an associate attorney in a law firm alleging that he had violated an agreement with the firm to remit 50% of fees he had collected to the firm. The alleged misconduct involved 20 clients and over $15,000 in fees due to the firm. According to the charging document:
"5. Respondent received the above-listed legal fees on behalf of the law firm and as an agent and fiduciary of the law firm.
6. At least 50% of the above-listed legal fees, in a total amount of $15,010.00, belonged to the law firm.
7. At no time did Respondent deliver any part of the above-listed payments to the law firm.
8. At no time did Respondent notify the law firm that he had received the above-listed legal fees.
9. Shortly after his receipt of each of the above-listed checks for legal fees, Respondent deposited them into his personal checking account number 7770014575, held jointly with his wife, Jennifer, at First Federal Savings Bank, Champaign, Illinois.
10. Respondent used all of the above-listed funds for his own personal purposes."
There is a trend towards treating such misconduct as a species of theft, with appropriate sanctions given the nature of the misconduct. (Mike Frisch)
Tuesday, December 11, 2007
Nevada's Standing Committee on Judicial Ethics and Election Practices recently opined that a judge may "become a member of a non-profit organization dedicated to advancing public dialogue on foreign relations through educational events which often involve speakers." The interests advanced by the organization "does not involve it in matters which would ordinarily come before the judge." (Mike Frisch)
The Florida First District Court of Appeal held that a corporation is not liable for legal fees sought by a private lawyer "[b]ecause there is no evidence that the attorney had actual or apparent authority to represent the corporation in the matter that was the subject of the [trial court's] fee award..." The corporation was "organized to promote acupuncture and other forms of oriental medicine." Two board members hired the attorney to sue other (and a majority) of board members for defamation. The court here held : "There can be little doubt that [the board member who hired the attorney] lacked the actual authority to retain [the lawyer] as the corporation's lawyer... apparent authority might be a viable theory of recovery if [the lawyer] reasonably believed that [the board member] had authority to retain him, but that assumption is not reasonable...Surely the corporation did not intend to sue itself." The attorney had sued both the corporation and the two individuals who had actually retained him for his unpaid legal fees.(Mike Frisch)
The Washington State Commission on Judicial Conduct censured a Superior Court Judge for misconduct at a training conference. He "repeatedly interrupted group discussion by using profanity and expletives to express his disapproval of or indifference to pursuing federal funding" for his court program. He also made a number of remarks concerning race, gender and sexual orientation. When told his group would get a star for its work, he said "I don't need a star. I'm not a Jew." When told to lower his voice during a planary session, he responded "by raising his middle finger at the team member." While several witnesses smelled the odor of alcohol on the judge, he denied drinking and attributed the smell to cough syrup. The sanction, imposed by agreement, requires the judge to take 10 hours of courses in judicial ethics, an alcohol and drug evaluation and seven hours of "programs on racial, religious, sexual orientation, and diversity training." He agreed not to retaliate against "any person known or suspected to have cooperated with [the investigation]."
This report was located after a reference to the matter appeared today on Abovethelaw.com. (Mike Frisch)
The District of Columbia Board on Professional Responsibility has adopted (and appended) a hearing committee recommendation for a 18 month suspension with automatic reinstatement in a case involving a former Assistant United States Attorney who had been involved in a bitter domestic dispute. The attorney submitted false documents to the tribunal hearing the case. The evidence consisted of altered checks and a false statement that he had paid more in child support than he in fact had. The misconduct persisted for well over a year and the attorney "did not come forward on his own to admit his misconduct; he was caught."
The hearing committee concluded that the attorney had not established disability (or, as we say in D.C., Kersey-style) mitigation but that the overall mitigation justified the proposed sanction. There was conflicting expert testimony as to the extent to which the attorney's depression (which had its genesis in his guilt over his child's suicide with a gun he kept in the house) affected the misconduct. The hearing committee did not impose a fitness requirement because "[t]he Committee sees very little to no chance of the events that took place occurring again." In my view, this a weak rationale given the nature of the misconduct. However, the attorney had suffered a debilitating stroke after the misconduct, which may have playing some role in the Board's decision not to impose fitness (sanction recommended "considering [the attorney's] health situation which suggests little likelihood of [his] returning to practice in the foreseeable future..."). This justification to forego a fitness hearing holds even less water for me. If there are physical, as well as moral, reasons to have serious concerns about an attorney's fitness to practice, then such an inquiry is all the more important and in the public interest.
Notably, the public member of the hearing committee dissented, finding the relative leniency unwarranted. This is why having public members (i.e. non-lawyers) is a good thing for bar discipline. The case now moves to the Court of Appeals for final action. (Mike Frisch)
An interesting decision from the Mississippi Supreme Court (courtesy of the Lawyers' Manual on Professional Coduct) deals with the attorney-client privilege in a case where the criminal defendant was convicted for unlawful possession of a stolen vehicle. The defense attorney was removed as counsel and called as a state's witness in order to tesify that he had received two documents from his client. The attorney had turned the documents over to the state on the first day of trial consistent with discovery rules. As a result, a mistrial was ordered and the case reset for trial. The trial court appointed new counsel for the defendant. The lawyer was a witness at the retrial.
The court held that the documents were relevant and not confidential or privileged. As the documents were counterfeit, the attorney was "unwittingly involved in [a] fraud/crime, therefore destroying any privilege or confidentiality which arguably might have existed." The attorney was properly called as a witness. Two dissents would find reversible error. One states: "it is my fervent opinion that [former counsel] should not have been permitted to testify." The second states: "The trial court failed to make any attempt at balancing the...interests...In removing [the defendant's] retained counsel, the trial court denied [defendant] his fundamental right to counsel of choice...The trial court further exacerbated the unjust denial of [defendant's] constitutional rights when it allowed the State to use [the defendant's] former attorney as a witness to introduce otherwise inadmissible evidence." (Mike Frisch)
The Ohio Supreme Court imposed sanctions on a certified public accountant for engaging in the unauthorized practice of law. The court web page provides the following summary:
"[The CPA], who is not licensed as an attorney, admitted preparing and filing documents on behalf of multiple business clients including articles of incorporation, articles of organization and certificates of dissolution. The Court imposed a civil penalty of $8,200 on [the CPA], representing a $100 fine for each of 82 instances in which he admitted having performed services that are restricted to persons who have met the educational and licensing requirements for admission to the practice of law." (Mike Frisch)
Monday, December 10, 2007
The Maryland Court of Appeals decided an interesting case interpreting Rule 1.8 (c), which prohibits an attorney from drafting a will that contains any substantial bequest or gift from the client to the lawyer without representation of the client by independent counsel. The client and lawyer had a close and longstanding relationship. The bequest was over $400,000. The lawyer prepared the will on the client's instructions. An attorney with whom the lawyer shared office space then explained the will to the client. The lawyer introduced the office mate as the client's "attorney for the day to discuss and, if necessary, modify the will." The client signed and is now deceased.
The court rejected the conclusion of the trial court (based on expert testimony) that the office mate was a truly independent counsel. "While that choice [of counsel] may have been blessed with the virtues of convenience and competence...it lacked consideration of the nuance of how the perception of closeness might be viewed as undermining the independence requirement of the Rule." The court majority concluded that the appearance of impropriety was sufficient to establish the ethical violation, while acknowledging that there was no evidence of collusion between the two lawyers: "A reasonable member of the public could look askance at such an arrangement and suspect that collusion could take place." The accused attorney was generally aware of the rule and "made a good faith effort to comply." The court remanded the matter to its Attorney Grievance Commission "for it to dismiss the petition, but with a warning to [the lawyer]."
A dissent would find no misconduct: "The Court, at least tacitly, recognizes the gross unfairness of [the determination of misconduct] by sending the case back to Bar Counsel so that he can dismiss it. That...is a classic 'cop-out' and wholly inappropriate.The Court pronounces publicly that [the attorney]has been guilty of serious violations of the Rules of Professional Responsibility, which will tar him for the rest of his career, and yet directs Bar Counsel quietly to dismiss the case."
The dissent further notes that, at the time of the alleged misconduct (1994), no court had held that a lawyer who shares office space cannot, as a matter of law, serve as an independent attorney: "Such a notion-that the law is always there, even if never articulated by any court or legislature- is, at best, an unwarranted extension of natural law theory, and, while it may have influenced the intellectual meanderings of the Eighteenth Century judicial establishment, it has long, and for good reason, been replaced by a more realistic precept of legal positivism. As applied by the Court in this case, it would presume a clairvoyance that, for ordinary mortals, is wholly unreasonable and that I suspect even the current (and retired) members of this Court do not possess."
This a definitely a case to ponder. (Mike Frisch)
Not a legal profession case, but worthy of note is a recent decision of the Court of Appeals of Indiana. The court affirmed a conviction for felony battery by bodily waste and misdemeanor disorderly conduct. The incident began with a mother-daughter argument "about the daughter brushing her teeth before going to school." After police arrived, the defendant spat in the officer's face. The evidence of the felony was deemed sufficient because the defendant "knowingly placed a bodily fluid on a law enforcement officer in a rude, insolent, or angry manner while the officer was engaged in the performance of official duties." The defendant, who proceeded pro se with standy counsel, also was found in contempt: "From the beginning of the trial, [the defendant] used extremely foul and profane language in the presence of the trial judge, which we choose not to repeat."
The defendant's name is Rageing Warr. (Mike Frisch)
The North Carolina Supreme Court censured a judge of the General Court of Justice for inappropriate conduct in connection with proceedings involving "a former client...with whom [the judge] had maintained both a 'father-like' and business relationship." The judge had ordered magistrates to set unsecured bonds in three matters and requested another judge to "go easy" in setting bond. He also signed an ex parte order granting emergency temporary custody of three minor children of the former client. The judge stipulated to the misconduct. (Mike Frisch)
The Arkansas Supreme Court denied reinstatement to a former attorney who had been disbarred in 2000. The applicant's post-disbarment career has been as a "credentialed secondary education teacher." The finding that he had failed to establish present good moral character was based, in part, on a letter that he had submitted in connection with the reinstatement. The letter stated that the applicant had "reimbursed all the parties involved in my misconduct to the best of my knowledge." In fact, restitution was not made to two persons until several months later. The misrepresentation was found to be "either intentional or grossly negligent...While we applaud his achievements since disbarment, we cannot ignore the similarity between his misrepresentations in his October 16, 2005 letter and the lapses in judgment that gave rise to disbarment." (Mike Frisch)
Three individuals and the "association in whose name they do business" were the subject of an original quo warranto action by the Kansas Attorney General alleging unauthorized practice of law. They twice sought without success to remove the action to federal court. While an appeal of the denial of the notice of removal was pending, a "hearing" was held before a commissioner which the Respondents did not attend or otherwise participate in. The commissioner entered what in effect was a default judgment. The Respondents appealed to the Kansas Supreme Court, which held that the hearing "should not have proceeded because the state action was required to be stayed while [the Respondents] second removal petition was still in effect." The matter was remanded for further proceedings.
Except as to the one Respondent who had argued the case before the court. The oral argument was taken as proof that he had "engaged in the unauthorized practice of law before us in our courtroom during his oral argument on behalf of his fellow Respondents." The court entered a permanent injunction against that person.
Two dissents find this conclusion unfair and would remand as to all of the Respondents. A key passage from one of the dissents:
" I am not convinced, however, that Janice Lynn King and Rosemary Denise Price were the clients of David Martin Price when he read their collective statement and responded to questions from the court. They were parties–as was he–and the fact that Price was the party designated to read what all the individual Respondents wanted to say does not constitute, in my estimation, the unauthorized practice of law. As David Martin Price said, he was appearing 'pro se,' and I would rather apply the liberal construction traditionally afforded such litigants."
I find the dissent's point well taken. It hardly seems fair to have a pro se litigant present oral argument and decide that the non-lawyer crossed the line into unauthorized practice. There was no concern that the court was misled into thinking the advocate was a lawyer. If it was unauthorized practice, the court should not so conclude sua sponte. Rather, the accused should have the right to notice and an opportunity to respond before a permanent injunction is issued.(Mike Frisch)
Sunday, December 9, 2007
The Supreme Court of the State of Washington held that an indigent party to a dissolution proceeding has no right to appointed counsel paid for by the state. The wife in the divorce case was pro se; the husband had retained counsel. The husband, as one might expect, prevailed in the litigation. The court majority held that the rights at stake were not so fundamental as to require counsel at public expense.
A dissent takes a different view:
"The majority fails to appreciate the full extent of the liberty interest a parent
has in the relationship with his or her child, and erroneously concludes that under
the state constitution the right to counsel does not attach unless termination of the
parent-child relationship is at stake and the State is a party to the action. I would
hold that an independent constitutional analysis applies in this context under the
state due process clause, article I, section 3. In accord with the principles
enunciated in Luscier and Myricks, an indigent parent has a due process right to
appointed counsel at public expense in residential placement proceedings
involving child placement because a parent has a liberty interest in his or her
children at stake, just as it is in termination proceedings."
I have it on reliable authority that the web site of the District of Columbia Bar is in the process of being updated to include reports of hearing committees in bar discipline matters. This will accomplish two important improvements. First, it will give the public much earlier access to information concerning the disposition of charges of ethical misconduct. Second, it will allow the public to evaluate the quality of the work of the hearing committees. As the hearing committee reports have always been public, this is a significant step in making the District of Columbia's disciplinary system more friendly to consumers of legal services. I will not take personal credit, although I have been pressing for this for a number of years.
Now, the next improvement I propose is the posting of Bar Counsel's charges of misconduct on the Bar's web page. This is already done in Illinois and permits an interested person know that charges have been filed and the nature of the allegations. If the attorney you wanted to hire or was handling your case had multiple charges of neglect or theft, wouldn't you want to know that? I certainly would. (Mike Frisch)
The Iowa Supreme Court has announced that it has taken steps to create an Office of Professional Regulation in order to bring the investigation and discipline of lawyers, court reporters and court interpreters within the authority of a single office. The court's web page states that: "The newly created Office of Professional Regulation will assume responsibility for administrative duties that are currently fragmented among three court offices—state court administration, the supreme court clerk's office and the office of boards and commissions."