Monday, June 30, 2008
I have been reading Paul Hoffman's 1973 classic, Lions in the Street: The Inside Story of the Great Wall Street Law Firms. Before writing the book, Hoffman was a reporter covering the legal beat for the New York Post. For someone reading the book in 2008, it is a fascinating contemporaneous account of Wall Street lawyers circa 1970. With the distance of nearly 40 years, it also reveals what is timeless about lawyers' preoccupations.
Here is a passage that I will use to explore the meaning of partnership in my course materials for our new Legal Professions course (from Hoffman's Chapter 4, entitled "Some Partners are More Equal than Others"):
There's a story told about a lawyer at Chadbourne who never spoke at partners' meetings. For years he sat silent while his colleagues debated and decided the future of the firm. Then, at one meeting, the promotion of associates to partnership was being considered. A name was put before the panel.
"I don't want him," one partner said. "I just don't like him."
The long-silent partner ahem-ed for attention, and the others bent forward, wondering what words of wisdom he had to utter at so long last.
"I don't see what that has to do with it," he said. "I don't like any of you."
There's nothing in the books--or partnership agreements--that says partners have to like each other. Some [Wall Street] firms manage to exist ... with the members barely even speaking to each other. But the partners have to find some sort of accommodation if the firm is to remain viable.
Most of the disputes come down to money (that may be a surprise to some, especially those who hold to ideas of the good ole days). Hoffman provides loads of anecdotes on "pie-hacking sessions."
Another striking feature of Hoffman's book is how many Wall Street name partners spent time in government, or left Wall Street and started a DC firm after a prominent political appointment. These partners were the paradigmatic "lawyer-statesmen" of Anthony Kronman's The Lost Lawyer (1993). But Hoffman's book, which reviews the lineage of virtually all the major Wall Street firms, implicitly makes the case that government service eventually produced a booming law practice. In an era in which talking to the press could open the door to charges of unethical solicitation (norms changed radically after Bates and the subsequent rise of the legal press in the late 1970s), newspaper coverage of public service presumably had special value. Not surprising, partners were willing to subsidize these activities.
Is it possible that the value of public service (as, essentially, a loss leader) became watered down by the courtroom and boardroom coverage of The American Lawyer, National Law Journal, and other publications? Questions like these come to mind as I flip through the pages of Hoffman's lively book, which reads like a novel. I highly recommend it.
The Georgia Supreme Court accepted a proposed six-month suspension of an assistant district attorney who had assisted his boss, the then-district attorney, in a scheme to obtain funds to which the district attorney was not entitled. The sanctioned lawyer had no prior disciplinary record and had expressed remorse for the misconduct. (Mike Frisch)
The New York Court of Appeals ordered disqualification of an attorney retained to defend a police disciplinary action. The attorney had provided legal advice to the complainant in an earlier dispute between the two that the court deemed to be substantially related to the present case:
As an initial matter, those elements of the two parties' 2000/2001 interactions that are undisputed establish that some kind of attorney-client relationship existed between Lovett and Falk. The record shows that Falk sought Lovett's legal advice at least partly in a professional capacity. The record further establishes that conversations between Lovett and Falk touched on the matter of disciplining Chittenden. Lovett acknowledges that he rendered some legal advice on that issue, advising Falk to be wary of Officer Chittenden's First Amendment rights. Moreover, while disciplining Chittenden might have been a personal desire of Falk's, a request for legal advice as to whether discipline against an inferior officer is a viable course of action falls squarely within a commanding officer's professional responsibilities. Accordingly, Falk in his official capacity had an attorney-client relationship with Lovett, and therefore has standing as a prior client to bring this action for declaratory judgment.
The other prongs of DR 5-108(A) are satisfied as well. Seeking advice about a potential disciplinary case against Chittenden for insubordination in 2000/2001 is "substantially related" to actually bringing just such a case in 2003. More specifically, Chittenden's prior conduct might bear on the issue of punishment, and Falk's prior consideration of pursuing charges for insubordination might likewise be relevant. Together, these factors create a sufficient nexus between the two representations. And Falk's and Chittenden's interests are materially adverse in the disciplinary proceeding, which pits these two parties — obvious antagonists — against one another.
Sunday, June 29, 2008
An Illinois attorney who had pleaded guilty with adjudication withheld to aggravated assault with a deadly weapon without intent to kill in Florida is subject to a hearing panel's recommendation of a one-year suspension with all but 90 days stayed. The attorney's version of the offense was reported by the doctor retained by the bar:
Respondent informed Dr. Henry that as he was driving through an intersection, his cell phone rang and, when he reached for it, his car veered to the right. When he looked up, he was surprised to see campaign workers holding placards supporting Congresswoman Katherine Harris. Respondent denied driving up on the curb and could not remember if the campaign workers were in the street or on the edge of the sidewalk. Respondent also denied knowing that Harris was present, or that he could even recognize her. Respondent told Dr. Henry that when he realized his vehicle was approaching the workers, he turned the steering wheel hard to the left to avoid them. He then proceeded on his way and gave no further thought to the incident.
Respondent reported to Dr. Henry that he later learned from one of his tenants that the police were looking for him. That evening he took his medication for depression, as usual, and then contacted the police. At their request, he went to the police station. Respondent recalled that when he was speaking to the police, he "rambled" and talked about situations that disturbed him. When the police asked about the campaign workers, he made a comment to the effect of "if I intimidated them, so be it." The police took Respondent into custody and he was incarcerated for several days before being taken to Sarasota Memorial Hospital where he was diagnosed with bipolar disorder.
According to the lawyer:
Respondent denied knowing Katherine Harris at the time of the incident or what she looked like. To his knowledge, the people standing on the corner with placards were campaign workers. He stated he feels he was a victim because the national media reported that he drove up on the sidewalk in an attempt to kill a Congresswoman. He denied driving up on the sidewalk or having the intention to cause fear to anyone. He acknowledged that he read Katherine Harris’ deposition and realizes that she was fearful. Respondent stated he received death threats after the incident and suffered a terrible ordeal. Occasionally he got reports from his probation officer that the FBI or the Secret Service were checking on him. He denied that the publicity of the incident included any reference to the fact that he was an attorney licensed to practice in Illinois.
The hearing board determined that the record established a sufficient basis to treat the criminal case as a conviction notwithstanding the withheld adjudication. One condition of the criminal disposition was a requirement that the attorney stay away from Congresswoman Harris. (Mike Frisch)
An Illinois hearing board has recommended a two-year suspension of an attorney for misconduct that included aiding in the unauthorized practice of his wife, who had earlier been disbarred. The unauthorized practice involved the representation of a Skokie police sergeant who had been named in a television news report as a person with possible involvement in the murder of an heiress to the Brach candy fortune. The rather interesting particulars:
Reiter [the police sergeant] contacted Respondent and discussed the news report, and his contact with the State’s Attorney’s office. Reiter had known Respondent for some time prior to this date. Within a few days, Respondent advised Reiter not to submit to a polygraph test. He also told Reiter that if he returned to the United States, he could be jailed under the Patriot Act and not allowed bail. Respondent agreed to determine whether Reiter was under investigation in the Brach case, and requested that Reiter pay him a $5,000 retainer. On April 9, 2005, Gary Reiter, Reiter’s brother, gave Respondent a check in the amount of $5,000.
Subsequently, Respondent telephoned Reiter and advised him that he would be coming to Puerto Vallarta to discuss the matter because it was not safe to discuss it over the telephone. Respondent also told Reiter that Jannice [the disbarred spouse] would accompany him. Reiter knew Jannice from a friendship he had with her parents. On April 14, 2005, Respondent and Jannice arrived in Puerto Vallarta. Reiter picked them up at the airport, and with Jannice present, Respondent discussed the matter with Reiter. Sometime between April 14, and 18, 2005, Respondent and Jannice advised Reiter and Reiter’s wife, Connie, that Jannice was a criminal attorney and would be assisting Respondent in the representation of Reiter. At the time he made these statements, Respondent knew that Jannice had been disbarred and was no longer licensed to practice law. At no time did Respondent advise Reiter of these facts.
Between April 14 and 18, 2005, Respondent and Jannice met with Reiter and Connie on at least three occasions to discuss the Brach case, including Reiter’s knowledge of the case, the possibility of an investigation of Reiter by law enforcement officials, and the possibility of filing a lawsuit against the reporter and television station that made the report about Reiter. They also discussed the possibility of selling the story of Reiter’s claimed innocence to certain television media outlets.
On April 17, 2005, Respondent gave Reiter a retainer agreement which provided that Respondent would serve as personal counsel to Reiter and provide all necessary advice and counsel. Additionally, the agreement stated that full compensation would be determined and agreed upon by Respondent and Reiter, and did not include an hourly fee schedule or any other means of determining how Respondent’s fee would be calculated. At the same time, Respondent gave Reiter a second document entitled "Compensation Agreement" which was signed by Reiter and Jannice. This document provided that "any funds which would be realized from any source from the sale of Lee Reiter’s story of his innocence in regard to the Helen Brach murder shall be divided equally between Jannice Whelan and Lee Reiter." On April 18, 2005, Respondent and Jannice left Puerto Vallarta.
Between April 25, 2005, and June 20, 2005, Jannice sent numerous e-mails to Reiter in which she requested information regarding the Brach case, discussed testimony of previous witnesses and defendants, discussed the news report naming Reiter, and provided legal advice to Reiter regarding the Brach case and his potential civil claim against the reporter and television station. Sometime after returning from Mexico, Respondent advised Reiter that Reiter should place his Skokie residence into a land trust to protect it from any civil claim which might be filed against him. On May 14, 2005, Jannice sent an e-mail to Reiter stating, among other things, "I am finished with the lawsuit against Channel 7 and Goudie. We [are] asking for 2 million in damages. The grounds are slander, libel, defamation of character, invasion of privacy, intentional infliction of emotional distress." On May 16, 2005, Jannice sent Reiter an e-mail suggesting how information could be obtained regarding the alleged criminal investigation by filing the civil lawsuit. She also stated, "we have to do this now because there is a one year statute of limitations from the publishing of the 1st defamatory publication . . . let me know ASAP so I can email the completed lawsuit to you before it is filed."
Sometime before June 15, 2005, Respondent advised Reiter that the legal fees and costs to put Reiter’s Skokie residence into a land trust would be $900. Steve Reiter, Reiter’s son, provided Jannice with the deed and other documents requested by Respondent and Jannice to establish the trust. On June 15, 2005, Respondent e-mailed the land trust documents to Reiter for his signature. Also on that date, Steve gave Jannice a check in the amount of $900, made payable to Jannice, for the legal fees involving the land trust. On June 16, 2005, Jannice, or someone at her direction, deposited the $900 check into the bank account of Michael Whelan. Michael Whelan is Respondent and Jannice’s disabled, minor son. At no time did Respondent or Jannice have authority to use the proceeds of the check for their business or personal purposes.
During a trip to Mexico in June 2005, Gary, Reiter’s brother, obtained the original signed land trust documents from Reiter. Subsequently, Steve gave the documents to Respondent. Reiter’s signature was not notarized, and Respondent advised him that Jannice was applying for a notary, and would notarize his signature.
On June 20, 2005, Jannice sent Reiter an e-mail requesting $1,920 to obtain copies of law enforcement reports relating to the Brach case. On June 21, 2005, Steve issued Reiter’s check in that amount made payable to Jannice. Also on that date, Jannice or someone at her direction, deposited the check into Michael’s bank account. At no time did Respondent or Jannice have the authority to use the proceeds from the check for their business or personal expenses. As of June 27, 2005, prior to any payment for costs on behalf of Reiter, Michael’s bank account was overdrawn by $839.69. Accordingly, Respondent and Jannice had used the $900 and $1,920 given to them by Reiter for their business or personal expenses.
On July 29, 2005, Steve received a telephone call from Jannice advising him that she had located two unaired videotapes of a news report involving Reiter, and would need $1,000 for costs to obtain them. She also stated that the tapes would be vital to the civil action against the reporter and television station. Later that day, Respondent met with Connie and Steve at Reiter’s Skokie home, and obtained a check from Steve in the amount of $1,000 made payable to Respondent. He told Steve that the check would be used to obtain the tapes. He also advised Steve and Connie that Jannice was prepared to file the civil action, but he was "holding things up" because he had a "gut feeling" that there were a few more pieces of evidence that they could obtain before filing the lawsuit. On July 30, 2005, Respondent cashed the check, and used the money for business and personal expenses. Respondent had no authority to use the money for those purposes. Respondent knew or should have known of Jannice’s conduct in the case, and that he was aiding her in the unauthorized practice of law.
Between April 8, 2005, and July 29, 2005, Reiter or someone on his behalf, paid Respondent and Jannice approximately $28,000 for legal fees, costs, documents and tapes. At no time did Respondent provide Reiter with any evidence establishing whether he was formally under investigation by state or federal law enforcement authorities. At no time was Reiter indicted by state or federal officials in relation to the Brach case.
A Kansas district court judge was censured for intemperate and undignified conduct during the voir dire of in a criminal trial. After one potential juror had indicated an unwillingness to believe the testimony of police witnesses, the judge required the juror to remain throughout the trial. The judge then addressed the jury pool as follows:
'All right. Anybody else want to mess with me?'
The judge continued to question potential jurors in a loud voice and later apologized to panel members for displaying anger and impatience with them. The Kansas Supreme Court concluded:
The respondent's failure to control her temper and frustrations and her conduct toward potential members of the jury in open court greatly detracted from the honor and dignity of the judiciary. Her actions negatively impacted the proper administration of justice in a felony criminal case over which she presided. While we recognize that the Commission's recommendation is not binding on this court, (citations omitted) our review of the entire record supports the Commission's recommendation that the appropriate discipline in the respondent's case is public censure.
An article from the web page of the Wichita Eagle describes the case and mentions two prior reprimands of the judge. (Mike Frisch)
Friday, June 27, 2008
An order of suspension in Michigan against David Safavian based on his criminal conviction was vacated as a result of the reversal of that conviction by the United States Court of Appeals for the District of Columbia Circuit. Both the suspension and vacatur were in automatic response to the actions in the criminal case. The disciplinary matter predicated on the conviction was ordered dismissed. (Mike Frisch)
A two-year suspension was imposed by the Kansas Supreme Court in a matter where the accused attorney was one of five children. During the father's lifetime, disputes among the siblings arose in competing guardianship and conservatorship cases. The attorney was appointed guardian; a brother was named conservator. When father died, things really got ugly.
When his sister wrote the judge complaining about his conduct as guardian, the attorney responded with a malicious prosecution and defamation suit against sister and her attorney. The case was eventually dismissed with sanctions for frivolous litigation awarded to sister and her attorney. in determining sanction, the court noted three prior instances of discipline and quoted the hearing panel concerning the nature of the misconduct:
"The Hearing Panel has carefully considered the Respondent's misconduct in this case. The Hearing Panel is troubled by the Respondent's misconduct in this case. The Respondent's suit against his sister and her attorney was founded in defamation and abuse of process [malicious prosecution]. However, the damages alleged by the Respondent had nothing to do with the allegations of the petition. The Respondent sought more than $112,000 from his sister and his sister's attorney for unreimbursed expenses attendant to his father's needs and for the Respondent's time spent visiting his father. The Hearing Panel finds that the Respondent engaged in excessively aggressive conduct that assails the standards to which lawyers are to conduct themselves, in that Respondent would attempt to have his sister and her attorney pay the Respondent for time he spent visiting his father and other alleged damages that were not even remotely related to the allegations in the Petition or the Amended Petition.
The court did not consider the lawyer's lack of prior experience with defamation cases as a mitigating factor. (Mike Frisch)
The Nebraska Supreme Court held today that a graduate of a law school not approved by the ABA may not seek admission without examination. The applicant had attended Western State University College of Law. and had satified Nebraska's MPRE requirement. He had passed the bar and been admitted in Georgia in 1992. He is a member in good standing of the Georgia Bar. He moved to Nebraska in 2006 to be near to his ill parents.
Western State is now accredited. The court permits waivers for graduates of foreign law schools. However,
there is a criical distinction between graduates of foreign law schools and graduates of nonaccredited U.S. law schools. The ABA does not evaluate foreign law schools for accreditation; thus, there is no way for citizens of foreign countries to attend an ABA-accredited school in their own country.
The court declined to adopt the suggestion that it evaluate credentials of such applicants on a case-by-case basis. The requirement that a domestic graduate attend an ABA-accredited institution is non-waivable. (Mike Frisch)
Thursday, June 26, 2008
An accountant who had been convicted of wire fraud arranged to be a 49% shareholder of a public accounting firm while there was a pending proceeding to revoke his license. The Missouri Supreme Court held that the Board of Accountancy properly exercised its discretion not to grant a license to the firm. It was not error to impute the prior individual misconduct to the new entity:
...the Commission further held that because the relevant conduct occurred prior to IFS's formation as a corporate entity, the Board could not consider it. This reasoning is flawed because a new firm applying for an initial permit has no history and, so, to require the Board to issue the permit, regardless of the background and character of the corporate owners, would frustrate the intent of section 326.310. Reading the statutes together, the authority of the Board to deny a permit under section 326.310 by imputing the past misconduct of the owners to the new firm is at least implicit, if not express. Kossmeyer is a convicted felon who has been found unfit to practice accountancy in the state of Missouri, and his conduct reflects no less poorly on the fitness of IFS as a public accountancy firm simply because it occurred before the entity's formation.
In an interesting decision, the New York Appellate Division for the Third Judicial Department denied admission to an applicant conditionally admitted by Connecticut in May 2007. The applicant had a number of issues enumerated by the court including traffic violations that had led to license suspension, discharges from employment, reprimand for failure to disclose prior criminal record in application for law school, lack of candor in the bar admission process and a history of alcohol and marijuana dependence for which the applicant was being treated. The Connecticut conditional admission had required monitoring. There is no indication from the order of a violation of the conditions. The applicant can reapply for admission in a year. (Mike Frisch)
The Florida Supreme Court accepted findings of misconduct but rejected a referee's proposed three-year suspension in favor of disbarment in a matter where the attorney had represented a client who had engaged in unauthorized practice. The lawyer then, in essence, went into the unauthorized practice business with the client. The lawyer made false representations in the bar investigation and had caused significant harm to the interests of eight clients in immigration matters. The court concluded that the misconduct warranted the sanction of disbarment. (Mike Frisch)
A complaint filed by the Illinois ARDC alleges that the attorney had undertaken the representation of two plaintiffs in cases involving claims of employment discrimination. The lawyer, who had a solo practice, then accepted a partnership with a law firm that defended business interests in such matters. According to the complaint:
Prior to the initiation of his employment at Hinshaw, Respondent knew that Hinshaw expected him to build a practice on representing businesses and government entities in employment litigation matters, and that, accordingly, he should withdraw from and/or find substitute counsel for as much of his plaintiff employment litigation practice as possible prior to his employment.
Prior to the initiation of his employment at Hinshaw, Respondent knew that he would have to close his solo practice when he started at the firm and that once he began his employment at Hinshaw he would be required to proceed on all matters, henceforth, as a Hinshaw lawyer and not a solo practitioner.
Prior to the initiation of his employment at Hinshaw, Respondent knew that when he started at the firm he would be required to substitute Hinshaw in as counsel of record for all open client matters, and to input client names in the Hinshaw conflict system for the purpose checking for conflicts of interest.
The complaint alleges that the attorney did not close his solo practice and had continued to represent the two plaintiffs without disclosure to the firm. He allegedly remained sole counsel of record in the cases without substituting the firm's appearance. The firm terminated his employment when it learned he had not closed his solo practice. According to the complaint:
At no time before December 12, 2006, had Respondent advised Hinshaw partners Browne or Shannon that he was not able to file plaintiffs’ response to the Dominick’s defendants’ motions for summary judgment in case number 03 C 9343 in a timely fashion.
On or shortly after December 12, 2006, Hinshaw learned that Respondent continued to represent clients he had prior to his employment with Hinshaw, in addition to the plaintiffs in case number 03 C 9343, including, but not limited to, Chicago Transit Authority, Janis Taylor, and Jesica Gonzalez, without opening Hinshaw client matters, inputting the party names into the Hinshaw conflict system, or substituting Hinshaw as counsel of record.
On or shortly after December 12, 2006, Hinshaw asked Respondent for his resignation.
On or about January 12, 2007, Hinshaw terminated Respondent’s employment.
Respondent’s conduct in failing to advise his partners at Hinshaw that he continued to represent clients he had prior to his employment with Hinshaw, including, but not limited to the plaintiffs in 03 C 93423, without opening Hinshaw client matters, inputting the party names into the Hinshaw conflict system, or substituting Hinshaw as counsel of record, as set forth...above, was dishonest and Respondent knew it was dishonest because Respondent knew of Hinshaw’s expectation, requirements, and practices in this regard.
The lawyer is charged with, among other things, neglect of the two employment cases and breach of fiduciary duties to the law firm. (Mike Frisch)
An attorney who had been convicted (and subsequently pardoned) for a drug offense that occurred when he was 17 years old is not disqualified from holding the position of Family Court Commissioner, according to the holding of the Delaware Supreme Court. He had been tried and convicted as a adult, but was admitted to the Delaware Bar and has been an honorable and productive member of the Bar. The court here concluded that the offense was not an "infamous crime," which would have disqualified him from the office. The court emphasized his age at the time of the offense in reaching its conclusion. (Mike Frisch)
Wednesday, June 25, 2008
[Posted by Bill Henderson]
The International Journal on the Legal Profession has issued a call for papers on the topic "Impact of Legal Change on Legal Practitioners." Here are the details:
Journal of the Legal Profession invites submissions for a symposium on how
legal changes impact the day-to-day work of legal practitioners. The types of
issues that would be appropriate for articles includes how legal change impacts
such things as the market for specialized legal practices, lawyers’ decision
making practices about which cases to pursue, the way lawyers handle specific
types of cases, or how lawyers work with experts; these topics are meant to be
suggestive not exhaustive. More specific examples in the
The symposium editor will be Professor Herbert Kritzer, William Mitchell College of Law (email@example.com). Authors who have questions about whether their work would be appropriate for the symposium should contact Professor Kritzer.
More information after the jump:
The Illinois ARDC has filed a second amended complaint alleging that the attorney engaged in inappropriate sexual behavior toward three clients and the wife (and opposing party) of another client. Samples of the alleged conduct from the charging document:
On June 15, 2005, Respondent and Sarah met in his office. Respondent asked Sarah to give him a hug. Sarah gave Respondent a hug. At that point, Respondent proceeded to grab Sarah’s buttocks, pull her toward him, stick his tongue in her mouth, simulate the turning of her breasts and place her hand outside his pants on his partially erect genitals, stating to her "see what you’ve done." Sarah repeatedly stated to Respondent; "Okay that’s enough"; but he did not stop. Respondent said other things to Sarah including "You don’t know what you do to me"; and "Why don’t you lay down on the floor right there?"
During the course of Respondent’s representation, Respondent asked Brevoort [his client]to explain her reasons for wanting a divorce. Brevoort advised Respondent that her husband was an alcoholic and that they had not been intimate in three years. Respondent remarked to Brevoort that if she were his wife she wouldn’t be left alone.
Respondent also appeared once at Brevoort’s home uninvited, stating he wished to discuss issues relating to her dissolution. Brevoort was fearful of Respondent and uncomfortable with the presence of Respondent at her home. Respondent left when he realized Brevoort’s son was at home at the time.
On or about March 16, 2004, Respondent telephoned Brevoort. Brevoort was in her car with a friend when she received Respondent’s telephone call. Because of Respondent’s prior inappropriate sexual conduct, Brevoort requested that her friend, Linda Wedig, who was present in the car, listen to Brevoort’s conversation with Respondent.
In his telephone conversation with Brevoort, Respondent asked Brevoort to meet him. Brevoort asked Respondent what they needed to meet about and Respondent replied, "a blow job." Brevoort was shocked, and asked Respondent whether Respondent had been drinking.
As to a third client:
Throughout the time Respondent represented Johnson, Respondent made inappropriate and suggestive remarks to Johnson, complimenting her appearance, remarking that he could not believe her ex-husband ever left her, discussing the commencement of a sexual relationship, getting "naked" together, and discussing oral sex. Respondent would call Johnson and engage in lengthy conversations of this nature, including asking her to join him on a trip to Springfield so they could have sexual relations. Respondent and Johnson would engage in touching and fondling including at conference rooms at the courthouse.
Although Johnson was attracted to Respondent, she would often inquire of Respondent whether it was appropriate for them to engage in these conversations or sexual relations, because he was her attorney. Johnson also had concerns since Respondent was married.
At some time on or about August 26, 2007, Johnson told Respondent she no longer required his representation. Johnson believed the relationship was becoming too personal and it was not proper for Respondent to continue to represent her in her case. On or about that date, Respondent leaned up against her and rubbed himself against her, touching her thighs and telling her that she didn’t know what she did to him.
As to the client spouse:
After Dirk [the client] left Respondent’s office, Respondent stated to Leah that most divorces resulted from disputes over sex or money and asked her to explain the reasons that she sought a divorce. Leah advised Respondent that her husband worked nights and that their physical relationship had suffered as a result. Leah began to cry, explaining her reasons for dissolving the marriage and for leaving Dirk.
Respondent hugged Leah and drew her in close to his body, pressing her against his erect genitals. Leah pulled away and Respondent then grabbed Leah’s hand and placed it upon his genitals, over his clothing. Leah told Respondent to stop and then left Respondent’s office.
Because charges such as these almost invariably involve one-on-one conduct, there are often problems of proof to the certainty required in a bar discipline proceeding. Where the allegations involve a number of unrelated persons alleging the misconduct, the pattern makes for a much stronger case. (Mike Frisch)
An Oklahoma lawyer who was disbarred as a result of convictions for stalking and felony distribution or attempted distribution of obscene or indecent material was granted post-conviction relief after the disbarment order. The relief reduced the felonies to misdemeanors. He then sought a modification of the disbarment to a retroactive one-year suspension as a result.
The Oklahoma Supreme Court noted that there is no formal process for such relief but denied modification on the merits:
The fact that the respondent's misconduct has more recently been described as a misdemeanor rather than a felony has no effect on this court's decision to disbar the respondent. We acknowledge that in no prior disciplinary case has an attorney been disbarred for committing a misdemeanor. We also recognize that "[i]n determining the proper discipline this Court compares the circumstances of the involved case with those of similar previous disciplinary cases involving other attorneys." Nevertheless, this comparison is made to determine "how best to serve the welfare of the public and the integrity of the bar." Moreover, as noted by this court in its original determination to disbar the respondent, "this Court has recognized that the extent of discipline must be decided on a case-by-case basis because each situation will usually involve different transgressions and different mitigating circumstances"
The respondent's "conduct involved multiple victims and occurred over a lengthy period of time."... "The most egregious transgression(s), in our view, attempted to envelope an innocent minor in his obsessive scheme of relentless harassment."In determining the respondent must be disbarred we clearly focused on the nature of the crimes committed.
The original misconduct grew out of the lawyer's obsession with his former secretary. (Mike Frisch)
The New York Court of Appeals today held that a lawsuit alleging, among other things, breach of fiduciary duty against an Orthodox rabbi by a women with whom he was alleged to have had a 3 1/2 year intimate affair failed to establish a viable cause of action. The complaint contended that the defendant had counseled the plaintiff on personal and other issues relating to her desire to marry and have children. the defendant allegedly claimed to be "as close to God as anyone could get" and "that he was, in fact 'the Messiah.' "
The court concluded that a fiduciary relationship requires de facto control and dominance. the plaintiff had "voluntarily consented to the 3 1/2 year intimate relationship with [defendant] because she subjectively believed that the 'therapy' he suggested would help her find a husband... no cause of action can be maintained for an extended voluntary sexual affair between consenting adults, even if [plaintiff] could prove that her acquiesence was obtained through lies, manipulation or other morally opprobrious conduct." (Mike Frisch)
A lawyer disbarred in New York for a federal felony conviction filed an amended certificate for his professional corporation that named his daughter (also an attorney) as director, president, secretary and shareholder. He thereafter filed documents claiming that he was sole director and dissolved and liquidated the corporation. He then sued another firm for legal malpractice in connection with their handling of claims involving the City of New York. The defendants moved to dismiss, contending that he could not individually bring suit on behalf of the corporation. The trial court granted the motion and the dismissal was affirmed by the Appellate Division.
The New York Court of Appeals reversed, holding that the merits of the malpractice claim had not been addressed. As to capacity to sue on behalf of the corporation: "Although [the corporation] initially lacked capacity to initiate the subject litigation in that it had been dissolved by proclamation of the Secretary of State...for failure to pay franchise taxes, this deficiency was cured when [the corporation] paid the required fees. Thus, [the corporation] was restored to the status it had when it was dissolved..." (Mike Frisch)
The District of Columbia Rules of Professional Conduct prohibit discrimination in employment with the following language:
A lawyer shall not discriminate against any individual in conditions of employment because of the individual’s race, color, religion, national origin, sex, age, marital status, sexual orientation, family responsibility, or physical handicap.
The prohibition, so far as I am aware, has never resulted in public discipline against a member of the D.C. Bar. The rule came to mind as I reflect on the report of D.O.J. Inspector General Glenn A. Fine finding employment discrimination in the Department of Justice honors and intern programs. By its language, discrimination based on inferred political leanings or affiliations would not appear to violate the letter of the rule. However, to the extent such discrimination constitutes criminal or otherwise improper conduct (such as violation of Department regulations), it might well violate D.C. Rule 8.4(b) (criminal conduct that reflects adversely on honesty, trustworthiness or fitness to practice in other respects) or (d)(conduct that seriously interferes with the administration of justice).
A web search (apparently a favorite tool for detecting political persuasion not apparent from a resume) for information about the two attorneys who were found to have discriminated reveals that both have left the Department of Justice and one is a practicing member of the D.C. Bar. I would expect the District of Columbia Bar Counsel to open a confidential investigation of this attorney in light of the Inspector General's findings. The Bar Counsel has the authority (and, in my view, the obligation) to proceed even without a formal complaint under the following Board on Professional Responsibility Rule:
An investigation may be initiated on the basis of a complaint or on the basis of any alleged ground for discipline coming to the attention of Bar Counsel or the Board from any source whatsoever.
Whether or not such an investigation goes anywhere remains to be seen. I have always favored open access to matters that result in dismissal so that the public could understand the basis of a Bar Counsel decision not to institute charges. I doubt the present rule (D.C. App. R. XI, section 17) that accords confidentiality to dismissal letters will change in the foreseeable future. (Mike Frisch)