March 29, 2008
A Pearl Of Wisdom
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)
Comments About Judge Merit Sanction
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)
Unauthorized And Ill-Informed
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)
March 28, 2008
A Well Known Respondent
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)
Why Small Moves in the USNWR Don't Mean Very MuchPosted by Jeff Lipshaw I opened up my RSS feed to Discourse.net and saw that it's "Black Friday" at the University of Miami Law School because it dropped twelve spots in the USNWR. As a public service, I am providing a link of rationalizing solace to those who think the world has ended, and a bit of deflationary downer to those breaking out the champagne.
Genuine Issues Of Material Fact
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)
Not Unauthorized Practice
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)
March 27, 2008
Feeding Employees Not Taxable
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."
Florida Sets Standards For Presiding Over Capital Cases
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)
Another Cautionary Tale
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)
More Reciprocal Discipline
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)
Unauthorized Practice Results In Significant Sanction
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."
March 26, 2008
Web Program on Judicial Sanctions for Attorney Misconduct, and Qualcomm, on Friday Mar. 28
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
Fees For Striptease Arrangement Reprehensible
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)
Ongoing Duty Of Confidentiality
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)
The Wisconsin Supreme Court ordered the continued suspension of a lawyer who has been suspended since April 1, 2004 as a result of his conviction of conspiracy to commit offenses against federal program funds. The attorney had served in the Wisconsin Senate for 23 years. He had argued against revocation of his license in this disciplinary case, contending that "the federal court decisions overstate the nature of the conspiracy and, while he concedes it was wrong to use state employees for personal work and wrong to fail to disclose the payments he received... the payments he received from [an entity that held contracts to administer the state's welfare-reform programs] were fairly obtained."
While the court "decline[d] to accept [the lawyer's] characterization of the events giving rise to the conviction, neither are we persuaded that revocation is a necessary sanction in this instance." As to sanction:
"This is a difficult case and one this court considered very seriously. We share the OLR's concerns about the serious violation of public trust committed by Attorney George, and we agree that substantial discipline is warranted to address that misconduct. At the same time, we are mindful that our role is not to duplicate the punishment Attorney George has already received for his actions, which includes a felony conviction, a lengthy prison sentence, and a very substantial restitution obligation that must be paid.
Ultimately, we have concluded that while Attorney George's misconduct was, indeed, extremely serious, it does not warrant the harshest penalty of revocation. We are influenced by the fact that this is the only disciplinary complaint filed against Attorney George since he was admitted to practice law in Wisconsin some 29 years ago. We are influenced by Attorney George's public service to the citizens of Wisconsin. His service long preceded the events giving rise to this disciplinary matter. Ultimately, while we agree that Attorney George has committed serious misconduct, we are persuaded that his prospects for rehabilitation are real. "
The court imposed a four-year and three month suspension nunc pro tunc to the 2004 suspension order. (Mike Frisch)
Severity Of Misconduct Militates Against Reinstatement
The Oklahoma Supreme Court denied a petition for reinstatement notwithstanding the significant period of time sence disbarment, evidence of good character and the absence of unauthorized practice during the period of disbarment. The strongest factor against reinstatement was the underlying offense itself:
"The offense committed by Hird - that of bank fraud and money laundering - was not only a serious crime but also one of significant consequence. The PRT panel reported it could find no lawyer disciplinary or reinstatement case that dealt with an amount of money as sizeable as that here. The loss to Caprock depositors and the general public whose taxes subsidized the government-insured losses to the savings and loan institution amounted to perhaps a hundred million dollars. Petitioner's acts directly and indirectly caused financial harm to many individuals. Moreover, in his position as general counsel for Caprock, Hird failed to uphold the ethical duties the Bar imposes on its members. His misconduct hence reflects directly and adversely upon the legal profession. While Hird's testimony and that of the witnesses given on his behalf reveal that petitioner recognizes the wrongfulness of his conduct, the PRT believes that there was a lack of proof concerning the impact his misconduct brought upon the legal profession."
Are there some offenses that are so severe that reinstatement should be off the table as a practical matter? Perhaps so if the conduct can fairly be characterized as causing the most severe financial harm in the history of the particular state bar. (Mike Frisch)
Resignation Moots Judicial Misconduct Charges
A New York Justice (who is not a lawyer but had served as a police officer) resigned from office after a complaint alleging judicial misconduct had been filed. The Commission on Judicial Conduct accepted the resignation as dispositive of the charges in light of the juydge's stated intention not to seek judicial office in the future. The charges and resignation letter are linked to the commission's order. (Mike Frisch)
Plagiarism Detection No Copyright Violation
Here's a link to an article in the Chronicle of Higher Education on a case involving the use of plagiarism search engine to detect academic dishonesty. The article reports that a federal court in Virginia "ruled...that a commercial plagiarism detection tool popular among professors does not violate the copyright of students, even though it stores digital copies of their essays in the database that the company uses to check work for academic dishonesty. " The article further reports that the students plan to appeal. (Mike Frisch)
SLAPP Counterclaim Dismissed
The New York Appellate Division for the First Judicial Department affirmed a trial court order granted summary judgment on a counterclaim. The plaintiff, an attorney acting pro se, was negotiating to purchase property to store and use business jet aircraft. He "undertook an active lobbying campaign to persuade town zoning officials to enact a zoning code to permit his desired use, which efforts were aggresively opposed by defendant Long Island Pine Barrens Society." He sued the Society for defamation. The conterclaim at issue accused plaintiff of "retaliation for defendants' public advocacy and, therefore, was an improper SLAPP suit under Civil Rights Law."
The court interpreted the requirement that the SLAPP cause of action must involve a claim brought by a "public applicant or permittee." Here, plaintiff was not such a person:
"... plaintiff cannot be deemed a public applicant or permittee based upon the fact that he aggressively advocated a particular agenda directly to Town Board members and at public meetings, and took steps to commence litigation against the Town. Moreover, defendants present absolutely no evidence that plaintiff made any attempt to comply with, or initiate an application process under, the Town of Riverhead's specific procedures governing applications for zoning variances. In view of the narrow construction which must be afforded Civil Rights Law § 70-a and § 76-a, we find, as did the motion court, that merely advocating one's agenda at public meetings, or initiating legal action, does not bring an individual within the ambit of an applicant or permittee as defined in Civil Rights Law § 76-a(1)(b). "