Monday, March 31, 2008
The en banc Mississippi Supreme Court suspended Circuit Court Judge Bobby B. DeLaughter pending resolution of charges filed by the Commission on Judicial Performance based on two complaints alleging improper ex parte communications. The court states that "[n]o inference of any final determination should be drawn from the temporary suspension ordered herein." The judge is best known for his prosecution of Byron de la Beckwith for the murder of Medgar Evers, made into the movie Ghosts of Mississippi. (Mike Frisch)
A law firm entered into an agreement with a third party to guarantee payment of a client's legal bills. The firm agreed to release the client from further liability in exchange for a $5,000 payment. The firm then sued on the guarantee. The New York Appellate Division for the Second Judicial Department reversed the trial court's grant of summary judgment for the third party: "[T]he plaintiff's reservation of rights clause contained in the stipulation [with the client] did not absolve the defendant of his obligation under the guarantee...there are triable issues of fact concerning the reasonable value of services rendered by the plaintiff to [the client]." (Mike Frisch)
In a reciprocal discipline matter from Ohio where the attorney had been suspended for failing to file a registration statement and complete CLE obligations, the New York Appellate Division for the Second Judicial Department declined to suspend and ordered a public censure. The court deemed a non-suspensory sanction appropriate notwithstanding the attorney's default in the matter.
In D.C., where there are no post-admission CLE requirements, we would report these Ohio orders and take no further action as the misconduct was not misconduct under District of Columbia ethics rules.
In an unrelated matter, the court reduced a two-year New Jersey suspension to 18 months, as had been recommended by a Special Master. The attorney had claimed a violation of due process, because "the [New Jersey] OAE delayed filing a complaint for eight years during which time [the client] died, thus depriving him of a principal witness who could have exonerated him..." and that "at the age of fifty he is not easily employable and that the imposition of reciprocal discipline ' will economically devastate [his] family and lead [them] into bankruptcy. ' " The court took into account as series of mitigating factors in imposing discipline. (Mike Frisch)
The New York Appellate Division for the Second Judicial Department ordered disbarment of an attorney who had pleaded guilty to one court of possession of child pornography in the Southern District of New York. Automatic disbarment was deemed appropriate because the elements of the federal offense are "essentially similar" to a class E felony under state law. The court looked to the circumstances of the offense by examining the admissions made in connection with the guilty plea in reaching its conclusion. (Mike Frisch)
The Massachusetts Supreme Judicial Court affirmed a contempt finding made by a single justice that a suspended lawyer engaged in unauthorized practice by drafting a series of pleadings and related documents in a domestic case:
"Kafkas argues on appeal, as he testified before the single justice,
that he was merely helping his acquaintance with his spelling and
grammar. However, the single justice did not so find. There is no
indication that he credited this testimony. Indeed, to the contrary,
the single justice specifically found that Kafkas had become 'engaged
as lawyer for another in a new matter,' and that his work 'constituted
the practice of law' as well as paralegal work. Similarly, while Kafkas
argues that he did not wilfully disobey the suspension order, the
single justice found that he did. None of the single justice's findings
has been shown to be clearly erroneous."
The case is Matter of Kafkas, decided March 28, 2007. (Mike Frisch)
Saturday, March 29, 2008
Not a legal profession case, but it is hard to resist commenting on a decision that opens with this eye-catching line: "No one wants to live near a hog confinement operation." The Iowa Supreme Court denied injunctive relief to the soon-to-be neighbors, noting that it does not act as a zoning board and that the plaintiffs had failed to meet the standards for anticipatory nuisance. (Mike Frisch)
An attorney who had previously served as an associate district court judge was suspended by the Iowa Supreme Court. He had left the bench after a conviction for an alcohol-related driving offense. This case involves discipline for a second offense and published remarks that suggested bias and dishonesty on the part of the judge who had imposed sentence in that case. The court discusses at length the applicability of Rule 8.4(b) and concludes that the offense adversely reflected on fitness to practice. the court further concluded that the remarks were not expressions of opinion protected by the First Amendment. The attorney may not seek reinstatement for at least three months. (Mike Frisch)
The Kansas Supreme Court indefinitely suspended an attorney who is presently serving a disciplinary suspension for assisting a friend in a bankruptcy, which the court concluded amounted to unauthorized practice of law as well as other violations.
"...the evidence clearly established that Respondent did not give J.P. good advice. The reporting attorney's letter to J.P. explains that, not only were the filed bankruptcy schedules disadvantageous to J.P., but the choice to pursue bankruptcy was ill-advised. Indeed, when asked whether he disputed the reporting attorney's claims, Respondent admitted that he did not possess sufficient bankruptcy knowledge to know whether the analysis in the letter was correct.
One perceives that Respondent did not feel constrained by his lack of bankruptcy knowledge and experience because he was simply helping a friend without charging a fee. However, the friend knew that Respondent was an attorney, albeit she also knew that he was currently suspended. The friend clearly relied on Respondent to know what he was doing. In the context of attorney-client privilege, we have said that an attorney-client relationship 'is sufficiently established when it is shown that the advice and assistance of the attorney is sought and received in matters pertinent to the profession.' Notwithstanding that Respondent may have lacked any pecuniary motive, he had an obligation to provide competent advice when J.P. sought his assistance. In the alternative, Respondent could have referred J.P. to competent counsel, which he was subsequently to do after the harm had been done." (Mike Frisch)
Friday, March 28, 2008
The Illinois ARDC has recently filed a disciplinary complaint charging the attorney with neglect and dishonesty toward his client. When pressed about the status of the case, the attorney allegedly told the client that "the wheels of justice grind slowly." The case would be otherwise unremarkable but for the identity of the accused attorney. It appears that the accused is the same James H. Himmel that rose to disciplinary fame as the first lawyer sanctioned for violating the duty to report misconduct (remembering, of course, that the Illinois version did not track the language of Model Rule 8.3) (Mike Frisch)
A trial court order granted summary judgment to a defendant law firm in a legal malpractice case was reversed by the Supreme Court of Wisconsin. Foley & Lardner were sued by a former client who manufactures web guide control systems. The client alleged that the lawyers had failed to prevent the premature expiration of a patent that they held. The court concluded that:
"we are satisfied that there were genuine issues of material fact that precluded the granting of the summary judgment motion against AccuWeb. Our holding focuses on three main areas where AccuWeb presented sufficient evidence on damages to avoid the granting of summary judgment against it. First, AccuWeb showed diminution of business valuation problems upon any attempt to sell its business. Second, AccuWeb clearly demonstrated a loss of its ability to license or assign the rights to use the invention formerly protected by the 414 patent. Third, AccuWeb presented enough information to establish reasonable competing inferences on the reason for FiTech's substantial reduction in the amount of its offer to purchase AccuWeb, which was a reduction from approximately $12.2 million to $5.5 million...
...we hold that AccuWeb demonstrated that there were genuine issues of material fact that were sufficient to preclude the granting of a motion for summary judgment against it on the issues of whether there was evidence of damages resulting from the loss of its 414 patent, and the amount of those damages. Based on the record before us, we are satisfied that AccuWeb could present evidence sufficient to enable a reasonable jury to award damages to the company in an amount that is supported by the evidence. We, therefore, reverse the decision of the court of appeals because we hold that there were genuine issues of material fact that precluded summary judgment against AccuWeb." (MIke Frisch)
In a Nebraska probate proceeding, the county court ruled that two documents filed on behalf of a claimant by Tennessee counsel be struck as filings in violation of the Nebraska unauthorized practice statute. On appeal, the Nebraska Supreme Court reversed and remanded. Under the applicable rules governing at the time of the filings, the documents were properly filed:
"The record reflects that First Tennessee is a Tennessee banking corporation, with its principal place of business in Memphis, Tennessee, the same city and state where Wright, the Tennessee lawyer who filed the demand for notice, maintains her law practice. First Tennessee is a client of Wright...The filing of the request for notice was effectively an administrative matter and did not in and of itself involve either rendering a legal opinion to First Tennessee or engaging in a legal contest on behalf of First Tennessee in Nebraska. Given these facts, we conclude that the county court erred as a matter of law when it determined that Wright's filing of the demand of notice constituted the unauthorized practice of law..." (Mike Frisch)
Thursday, March 27, 2008
Not a Legal Profession case, but perhaps of interest to Paul Caron (if he has not already seen it) is a decision of the Nevada Supreme Court holding that giving complimentary meals to casino employees is not a taxable event:
"We conclude that, under the facts of this case, no taxable event occurred when the Nugget provided complimentary meals to its patrons and employees. Thus, the Nugget is owed a refund for use tax paid on the complimentary meals in question, and we reverse the district court’s summary judgment denying the Nugget’s refund claim. We remand this matter to the district court for further proceedings with respect to the requested refund."
A recent post on a judicial discipline case from New York referenced a dissent that lamented the lack of minimum qualification standards for judges. Florida has just adopted a rule setting forth standards for judges who preside over capital cases. The rule applies to collateral attacks on capital convictions as well as trials. The judge must have at least six months experience presiding over felony cases and take a refresher course. (Mike Frisch)
The Oregon Supreme Court denied readmission of an attorney suspended in 1995 for non-payment of bar dues. The Bar contended that the case should be treated as a reinstatement after disbarment and the applicant did not contend otherwise. The attorney had been admitted in Oregon notwithstanding some evidence of an alcohol problem. Shortly after admission, the following took place:
"Following his admission to the Bar, applicant worked as a law clerk at a Portland law firm. He continued to use alcohol and marijuana, but did not do so during work. However, at a firm picnic, applicant had too much to drink and engaged in a verbal confrontation with one of the partners regarding that partner's contributions to the firm. The firm promptly terminated applicant from his job."
He then went inactive, moved to San Francisco and became a stockbroker. He continued to drink and became addicted to cocaine. This led to a series of incidents that took place while he was using crack cocaine. He pleaded guilty to stalking his ex-girlfriend, was charged with cocaine possession, struck a parking lot attendant during an attempt to steal a girlfriend's car, and pleaded guilty to felony driving under the influence of intoxicants. While there was no evidence of illegal drug use after 1997, he has continued to drink. He had filed for bankruptcy, discharging over $236,000 in debt.
His continued "social" drinking caused concern to the court:
"The evidence about whether applicant has overcome his addiction to drugs is undermined at least to some degree by Byrd's testimony suggesting that there is a very high likelihood of a relapse into addiction due to applicant's continued consumption of alcohol. In our view, the evidence regarding applicant's moral character in that regard is in conflict. We cannot find that his drug and alcohol habits presently affect his ability to practice law and constitute a danger to the public. We also cannot find affirmatively that applicant has overcome his drug and alcohol habits so that he is not a danger to the public. Applicant bears the burden of proof on that question and must carry that burden by clear and convincing evidence. We find that applicant has failed to carry his burden of proof."
As to the impact of the bankruptcies, the court noted that "a bankruptcy will not reflect adversely on applicant's character if it is motivated by an exteraordinary hardship."Here, "applicant and his wife took on over $400,000 in debt, over and above their existing consumer and tax debt, at a time when applicant should have known that his job was in jeopardy." In sum:
"Applicant has filed for bankruptcy twice in a span of eight years, discharging similar consumer debts in the process and purchasing a new house shortly before the later filing. The circumstances surrounding the bankruptcy raise doubts as to the applicant's moral character. We do not necessarily agree with the Bar's contention that those events indicate 'a coordinated plan to obtain a new home in Portland at the expense of his past creditors.' However, we are left with a substantial doubt whether applicant is prepared to honor his financial obligations in the manner expected of lawyers admitted to the Bar."
Reinstatement denied. (Mike Frisch)
Two reciprocal discipline cases decided today by the District of Columbia Court of Appeals show the potentially complex issues of imposing discipline based on the findings of another jurisdiction. in the Hallal case, the court considered a matter where the attorney had been indefinitely suspended in Massachusetts "for improperly billing clients for his personal expenses." Because there is no such thing as an indefinite suspension in D.C., the court held that the "functionally equivalent" sanction was a five-year suspension with fitness. The attorney was given nunc pro tunc treatment to the date of his Massachusetts suspension (making him eligible for reinstatement this June) because he had never practiced in D.C. and "the Massachusetts Bar Counsel notified the District of Columbia of his suspension on his behalf." That last quote is somewhat interesting because the court's rules require the attorney himself to report his suspension.
The Gailliard case involved a South Carolina attorney convicted of a criminal offense that "involved striking his teenage son with a truck." Rather than conduct a plenary inquiry into whether the crime involved moral turpitude, the court agreed with Bar Counsel and the Board that "it would be a misuse of resources ... to hold a hearing on the issue of moral turpitude at this time." The court found that the functionally equivalent sanction was a three-year suspension with fitness. As the attorney has been administratively suspended for nearly 20 years, the issue of moral turpitude will be considered if and when he seeks reinstatement. I applaud this common-sense, resource-saving approach. (Mike Frisch)
A Pennsylvania attorney who had continued to practice after being transferred to inactive status was suspended for a year and a day by the Supreme Court of Pennsylvania. The court accepted a joint petition in support of discipline by consent that had been filed on behalf of the attorney and the Office of Disciplinary Counsel. The attorney had admitted the misconduct and had no prior discipline. However, the "unauthorized practice was open and defiant in that Respondent personally took depositions of two witnesses in her law office, an office that should not have been operating during her 'inactive' status."
Wednesday, March 26, 2008
Posted by Alan Childress
We received this program announcement from the Washington Legal Foundation, and are happy to pass it along. A PDF of the invitation is here, and this is the announcement:
The legal system, and the litigation that arises within it, are by their very nature adversarial. But state and federal procedural rules, ethics codes, and judges’ inherent powers have been created to ensure that this adversarial process occurs in a civil manner. Recently, through a significant number of high-profile rulings and other actions, judges and other regulatory authorities have imposed severe sanctions on lawyers for misconduct during pre-trial discovery, during trial, and for conduct related to specific litigation. On Friday, March 28 at 10:00 a.m. EST, Washington Legal Foundation will be hosting a live Web Seminar program examining this recent rise in judicial sanctions against lawyer misconduct and providing guidance on how lawyers and litigants can navigate the ethical rules and keep out of trouble. Our speakers will be legal ethics professor Michael I. Krauss of George Mason University School of Law and civil litigator Damon D.W. Wright a partner at the Venable LLP law firm.
Glenn G. Lammi
Chief Counsel, Legal Studies Division
Washington Legal Foundation
2009 Massachusetts Ave., NW
Washington, DC 20036
The Illinois Review Board has recommended a one-year suspension in a case where the charged misconduct was summarized as follows:
"The charges arose out of Erwin’s representation of a client, Amber Quitno, who was employed as an exotic dancer. The complaint charged, and Erwin admitted, that Erwin agreed to give Quitno credit on bills for his legal services in exchange for her performing striptease dances for him. The complaint also charged that Erwin, while representing Quitno, touched her in a sexual manner without her consent and made false statements to police when questioned about Quitno’s allegations. Erwin denied that conduct."
Lawyer and client met at a "gentleman's club" named Heartbreakers. According to the review board:
"Erwin and Quitno met in summer 2001, when Erwin was at Heartbreakers as a customer and Quitno performed a dance for him. Thereafter, Quitno retained Erwin to represent her in connection with several legal matters. Erwin also represented Quitno’s husband and mother in various matters. One of the cases in which Erwin represented Quinto was a civil lawsuit against a doctor, alleging that he had sexually abused Quitno. In that case, Erwin and Quitno had a contingent fee arrangement. In the other matters, Erwin worked on an hourly basis.
Quitno was having difficulty paying Erwin’s bills and spoke with Erwin about this. They agreed that Quitno would dance for Erwin in exchange for credit against her legal bills. On more than one occasion, Quitno danced for Erwin, in his office and at Heartbreakers. In return, Erwin gave Quitno credit against legal fees due. During these dances, Quitno removed her clothing. Quitno also went to Erwin’s office and modeled outfits for him that she had purchased for her work. Erwin admitted this activity and expressed remorse for it.
Quitno testified that, at various times in his office and elsewhere, during the time he was representing her, Erwin touched Quitno’s breasts, buttocks, and vagina and penetrated her vagina with his finger. Erwin denied any such touching. The Hearing Board was presented with detailed evidence, fully described in its report, on this issue and on the relative credibility of the witnesses. " The hearing board had credited Quitnos' testimony in that regard.
The review board concluded that "[t]he proven misconduct warrants a significant sanction. [The fees for striptease arrangement] is reprehensible in and of itself." Also, the lawyer "repeatedly touched [the client] in a sexual manner without her consent, while he was representing her. Such conduct warrants significant discipline." (Mike Frisch)
The Colorado Presiding Disciplinary Judge approved a conditional admission for a public censure in a matter where an attorney had violated his ongoing duty of confidentiality in disclosures made in a motion to withdraw from representation. This is a problem that I have seen in the past (here's a comparable case from the District of Columbia). Attorneys must be aware that, in seeking leave to withdraw, no more may be said or disclosed than is absolutely necessary to advise the court of the basis for withdrawal. The duty of confidentiality continues during the withdrawal process and even after the motion is granted. (Mike Frisch)