April 4, 2008
Another Prosecutor Charged
An article in the Detroit Free Press reports that the head of the Wayne County Prosecutor's Office drug unit has been charged with ethical violations by the Attorney Grievance Commission. The article states:
"The grievance commission, the state Supreme Court's watchdog, charged Plants [the prosecutor] with professional misconduct Monday for allowing two Inkster cops and their confidential informant to lie under oath during a 2005 cocaine trial.
The episode stems from a March 11, 2005, Downriver drug bust that took 47 kilograms of cocaine off the streets.
During a preliminary examination, two evidentiary hearings and the trial, Plants allowed the officers and a witness to hide his role as the confidential informant, repeatedly denying that they knew one another, preventing defense lawyers from challenging the informant's credibility.
The informant, a paid tipster, was arrested during the bust but was freed without being charged."
Detroitnews.com reports the following statement from the lawyer for the accused attorney:
"Kenneth M. Mogill, lawyer for Plants, said the complaint appears to have been drafted to make the allegations 'as sensational as possible' and he believes the evidence will show Plants acted ethically and responsibly in a complex case.
'I think the grievance commission just got this very, very wrong,' he said."
The Free Press article further states that the accused attorney has been suspended with pay. (Mike Frisch)
Less Than Disbarment
The New York Appellate Division for the Second Judicial Department granted a motion to reargue an order of disbarment and imposed a five-year suspension in a matter involving conversion of client funds on multiple occasions, failure to maintain required records, a pattern of excessive fees and lack of candor in the disciplinary process. The attorney contended that there was no admissible evidence of misconduct and that Grievance Counsel had "misled him and coerced his 'limited admissions.' " The court found the latter contention "totally unsubstantiated." The attorney pressed for leniency on the following grounds:
"The respondent asks this Court to consider the numerous character letters submitted by satisfied clients, as well as those submitted by religious and business leaders with whom he regularly comes in contact. He emphasizes the remedial and preventative measures he has put in place and insists that there is no admission or proof of knowing and willful misconduct. The respondent further asks this Court to note that no law school courses ever taught him the rules of ethics which he is now alleged to have violated. He claims that as a private practitioner, he has had no role models to follow. He asks this Court to consider the devastating effect that the loss of his law license would have upon his wife and children, who rely on him for ongoing support."
The court had some sympathy:
"Notwithstanding the mitigation advanced and the respondent's claimed lack of venality, the respondent is guilty of serious professional misconduct and his arguments evinced a fundamental ignorance of the disciplinary rules regarding proper maintenance of an escrow account. Throughout his testimony, the respondent claimed confusion and a faulty memory with respect to dates. This led the Special Referee to conclude that the respondent had a persistent lack of candor when confronted by the Grievance Committee.
However, based upon the respondent's expressed remorse and acceptance of responsibility for his misconduct, and the comprehensive remedial measures that he has undertaken since the commencement of the disciplinary proceeding to insure that his escrow violations were not repeated, we conclude that the respondent's misconduct warrants his five year suspension from the practice of law." (Mike Frisch)
No Good Deed Goes Unpunished
A Nebraska lawyer who had advanced sums to an unemployed personal-injury client "for such things as transportation and vehicle expenses, insurance premiums, and rent" was suspended for 60 days by the Nebraska Supreme Court. Nebraska had modified its rule effective September 1, 1995, but the attorney's conduct was found to violate both versions of the rule. The court cites with approval a Maryland case holding that the rule has no exception for humanitarian acts. The court provides little, if any, explanation why suspension is the appropriate sanction.
I do not favor a blanket ban on financial assistance to a truly needy client regardless of the motive. While such payments should not be permitted to induce a prospective client to retain the lawyer or in circumstances that create a significant conflict of interest, a suspension for truly humanitarian help shocks my conscience.(Mike Frisch)
D.C. Shows Well
The new feature of giving access to hearing committee reports on the District of Columbia Bar's web page is already paying dividends. A report just posted shows the disciplinary system at its best--a thoughtful and comprehensive analysis of a contested case. The committee considered two matters involving immigration clients and concluded that the lawyer's "dishonesty clearly had the effect of both unjustly enriching her and directly, intentionally, and substantially harming her clients." The committee also found a failure to accept responsibility for misconduct and a lack of genuine contrition. They recommend a two-year suspension with fitness. (Mike Frisch)
April 3, 2008
Theft Of Foundation Funds Leads to Resignation
The New York Appellate Division for the First Judicial Department accepted an attorney's resignation and ordered that he be struck from the rolls. The attorney was under investigation for conduct described in the court's order:
"Respondent...acknowledges that he is under investigation by the Committee based upon a referral from the New York State Attorney General's office into allegations that as Executive Director of the Fischel Foundation, a not-for-profit charitable organization, respondent intentionally misappropriated funds belonging to the Foundation for his personal use. Respondent allegedly deposited checks payable to the Foundation into his attorney trust account, and then transferred those funds into his personal account. Respondent admits that prior to the referral by the Attorney General's office, he settled any and all claims against him. Finally, respondent acknowledges that if charges were brought against him predicated upon the misconduct under investigation, he could not successfully defend himself against such charges."
An article from the New York Post describes the underlying conduct. (Mike Frisch)
Prosecutor Charged With Prejudicial Comments On Pending Case
The Attorney Grievance Commission of Michigan recently filed a disciplinary complaint that charges an elected county prosecutor with violating Rule 3.6 in making a series of published comments concerning a criminal matter shortly after a guilty verdict was returned. He professed his belief in the defendant's guilt and made reference to the defendant's purported refusal to take a polygraph examination after the trial judge had ordered a new trial. The defendant was an elementary school teacher who had been convicted of molesting two students. The complaint alleges that the prosecutor made reference to inadmissible videotape evidence (non-erotic videos like Star Wars and Little House on the Prairie, which the judge had excluded from evidence), stated that the defendant had made videotapes because he was a pedophile and that he was a "freak."
The charged prosecutor has a relatively high profile, having handled the criminal prosecution of professional basketball players arising out of the Indiana Pacer-fan brawl. This case will be worth keeping an eye on, as there appears to be an emerging trend of disciplinary cases involving criminal prosecutors. A similar case against the now Attorney General of Maryland resulted in a reprimand. (Mike Frisch)
The web page of the California State Bar reports that amendments to the procedural rules governing bar discipline have been proposed by the Bar's Board of Governors. Among the proposed changes is a rule that prohibits last-minute resignations without any admission of misconduct. Such resignations will be considered "disciplinary resignations" and involve such an admission. In opposing the change, the president of the Association of Discipline Defense Counsel is quoted as saying that "[t]he current process...serves attorneys well..." Perhaps that is precisely why it needs to be changed. (Mike Frisch)
The Fruits Of Unethical Behavior
In a 4-3 decision, the Ohio Supreme Court indefinitely suspended an attorney who had caused an elderly client to transfer her assets into joint and survivorship accounts in both their names without informed consent, concealed estate proceeds after the client died, delayed the completion of estate proceedings and had improper ex parte communications with the probate judge. The lawyer had befriended the client when she was over 90 years old and suffering from ailments including signs of dementia and organic brain syndrome. "Unmarried and childless, [the client] possessed considerable wealth."
Although the client had asked him to draft a will for his benefit, the lawyer declined and "began transferring [her] assets, purportedly at her direction, into joint and survivorship accounts that they shared" to the tune of over a million dollars. When she died at age 99, he was appointed executor but "took no action on behalf of her estate for over 16 months." He concealed evidence of what he had done in interrogatories and to the probate court. The court majority ordered indefinite suspension without restitution.
Three dissenting justices would impose permanent disbarment. A concurring justice would order restitution: Although there was a settlement that allowed the attorney to retain some proceeds, the concurring justice did "not believe the [attorney] should be permitted to profit from his unethical behavior..." (Mike Frisch)
Increased Sanction For Domestic Violence
In a reciprocal discipline matter where New Jersey had imposed a public censure for an attorney's act of domestic violence against his wife, the District of Columbia Court of Appeals imposed a suspension of 60 days. The attorney had contested the recommendation of the Board on Professional Responsibility to increase the New Jersey sanction to a suspension. Bar Counsel had supported the board's recommendation, which the court adopted. Notably, the New York First Department and the U. S. District Court for the Southern District had imposed reciprocal censure.
While suspending this attorney (who likely does not practice in D.C. anyhow) may provide some satisfaction, I am strongly opposed to modifications of sanction in reciprocal cases as a matter of principle. The Bar Counsel that lives with the upward departure dies with the downward departure. The D.C. Board has not been the least bit shy in reducing proposed sanctions in cases involving serious dishonesty. Decisions like this one simply empower the board to take a de novo approach to these matters. Somewhere along the line, the public will suffer. (Mike Frisch)
A New Era In The District of Columbia
The long-awaited amendments to the rules governing bar disciplinary procedure in the District of Columbia have been issued by the District of Columbia Court of Appeals. I will be posting comments after I have had the opportunity to review the changes. Of particular interest is the new Rule XI, section 12 which sets out new procedures for consent dispositions involving discipline other than consent to disbarments. This was the most controversial issue in the lenghty debate over a variety of proposed rule changes. It appears that the court did not adopt the rule revisions (in my view, unworkable) concerning consent dispositions that had been proposed by the Bar's Disciplinary System Study Committee. (Mike Frisch)
April 2, 2008
From Practice To The Bench
A recently installed judge had been a partner in a two-lawyer firm when appointed to the bench. He sought an ethics opinion on issues relating to his transition. The former partner has decided to discontinue the practice. As a result, the Committee on Judicial Ethics opines:
"a critical feature of your situation is that, given your resignation and your former partner's stated intention to discontinue the practice of law, your former firm is now in the process of winding down its business and closing. It remains open for the sole purpose of collecting outstanding fees. No new clients are being accepted and, presumably, no further legal work is being done for existing clients. This significantly reduces any possibility that the firm could gain an advantage of any kind from continued use of your name, and the possibility that the firm could convey, or be perceived as conveying, the impression that it is in a special position to influence you, or other judges, in execution of judicial duties. Having these ameliorating factors in mind, the committee believes that it would not violate the letter or spirit of the Code if you were to acquiesce in your former firm's continued use of your name for a short period while it winds down its affairs. Indeed, to require otherwise would put the firm to the unnecessary expense of changing the firm's name and purchasing new firm stationery and checks solely for the purpose of going out of business."
Further, the judge may share in fees collected in the course of closing the practice. The judge will not be billing the clients directly or managing the collection efforts. The fees at issue are fixed, not contingent and the judge may share in the fees that are collected. (Mike Frisch)
Like Caesar's Wife (Julius, Not Sid)
A defendant in a criminal case moved to disqualify the prosecutor on the ground that he had previously represented her in a case involving similar charges. The Missouri Supreme Court held that disqualification was appropriate. The court concluded that the matters were substantially related and that it need not attempt to weigh actual prejudice as "prosecuting officials, like Caesar's wife, ought to be above suspicion." Further:
"The unstated rationale of the... cases [discussed] is that prejudice must be presumed because of the concern that the prosecutor has obtained confidential information while representing defendant that can be used while prosecuting her. And although the foregoing cases are distinguishable to the extent that the prosecuting attorney had represented the defendant in the same matter, rather than in a substantially related matter, the principle behind the holdings applies nonetheless. Where, as here, the two matters in question have such close temporal proximity and similarity of subject matter, the appearance of impropriety is inherent, and a defendant need not plead the use of any confidential information, or show actual prejudice, in a prosecution by her former defense counsel. In this situation, the appearance of impropriety, without more, requires disqualification, and respondent abused his discretion in failing to order it." (Mike Frisch)
Breach Of Ethical Obligations In Ex Parte Proceeding
The Kansas Supreme Court censured an attorney for misconduct relating to the administration of the estate of a "good friend." The attorney drafted the frirnd's will, which named himself and the client's brother as co-trustees of trusts created ubder the will. After the friend had died unexpectedly, he engaged in the following misconduct:
"The panel concluded that Respondent failed to competently represent the estate by failing to inform the co-personal representatives of their appointment, and by preparing and filing a petition that named Gayla Dowling as executor without first seeking and obtaining declinations from Patrick Dowling and Gawlik [who were named in the will]. The panel also concluded that Respondent violated KRPC 3.2, which requires an attorney to make reasonable efforts to expedite litigation consistent with the interests of the client. Here, Respondent failed to expedite the probate of Dowling's estate, causing a delay, which constituted a violation of KRPC 3.2.
Finally, the panel concluded that Respondent also violated KRPC 3.3, which, in pertinent part, imposes special obligations on attorneys in ex parte proceedings with the court.
'In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse.' KRPC 3.3(d).
The panel noted that
'ex parte proceedings, by their very nature, are expedited proceedings. The opportunity for the court to compare documents and conduct extensive analysis is limited. In this case, the Respondent presented the documents to the court that he had previously prepared. At the time the Respondent presented the documents to the court, he provided no additional explanation or information regarding the contents.'
Respondent's proposed order contained false information, as Gayla was not named as executor in the will. Because the documents were inconsistent with the will, and because Respondent had not previously notified the named executors and obtained their declinations, it was incumbent upon Respondent to inform the court of the irregularities."
A panel dissent favored a period of suspension. (Mike Frisch)
Google's Custom Time Gets New Rival
Posted by Alan Childress
Yesterday, for obvious reasons, the law blog discourse.net posted on Gmail's new feature Custom Time that allows the user to set the time an email was apparently sent. Backdating is apparently good for late cancellations of dates, March Madness pool selections (a la 'Wreaking Crew to win'), and tricking the boss into thinking the memo was sent on time but was swept into the spam filter. (At my school, I am amazed that most emails from the university president under the title "Tulane Talk: subject matter" are only found in my junk mail. That might make sense if he had a habit of trying to sell us CiAli$ for less as Subject Matter, but it is odd since these are internal emails.) Anyway, Custom Time has some great uses and was rolled out by Google yesterday. In the illustration at right, you can even mark it as 'read' and berate Grandma for forgetting she already read it.
Today I hear rumors that (a day late) Microsoft will announce that Hotmail will offer a similar feature, which in development was called Gates Now Can Stop Time Too, or GNCSTT for simplicity, and will be marketed as Cricket. Originally it was just called Unixx, but they decided Cricket would appeal to children better, sort of like Joe Camel. The new function only takes seven or eight steps and use of the middle mouse button. The only hitch is that it sometimes imbeds into any blog program certain codes that will wipe out user functions. When using Cricket, keep in mind that Windows XP will freeze and you will restart your computer after five or six End Now conversations with your computer where you get the feeling that your computer is repeating End Now like Rainman. They need to add a 'Definitely, definitely end now end now' grey box, one with stick to it.
Cricket is free for users of Explorer. They mean Internet Explorer, not the Windows table of contents thing.
April 1, 2008
Suspension For Sex With Incarcerated Client And False Denials
A Pennsylvania lawyer was suspended for 90 days for engaging in sexual activity with a client who was incarcerated at the Lehigh County Prison. The lawyer had developed a "close personal relationship" with the client, whom she had met when he was 15. He was 28 at the time of the incident at issue. The lawyer had signed into the jail as an attorney and identified the purpose as "legal." The visit lasted 2 1/2 hours. An officer had a "feeling something was wrong" and looked into the interview room and saw what he believed was intercourse (the precise observations are detailed in the Pennsylvania Disciplinary Board's report). The lawyer also made false statements to both prison officials and in the bar discipline case.
After five days of hearings, a hearing committee found that the officer's observations were credible and that, as the board stated "it is clear that at some point in the lengthy visit sexual contact occured. This contact constituted open lewdness and aiding and abetting in indecent exposure." The attorney's false denials to prison authorities were "understandable...but...not excusable." The board recommended a public censure, which the court rejected in favor of a 90 day suspension. The hearing committe had proposed a 120 day suspension. Disciplinary Counsel had sought a suspension of a year and a day, which would have required the attorney to petition for reinstatement.
The sanctioned attorney "didn't trust the disciplinary process and did not believe her personal life should be questioned in detail." It is also noted that the attorney "has been very active in political activities, serving in various capacities in the Republican Party in Montgomery County." (Mike Frisch)
Capital Crime Conflict Held Waivable
The Utah Supreme Court concluded that a trial court had not abused its discretion in denying a motion to disqualify one of two attorneys defending a capital murder case. The lawyers "both members of the disappointingly small corps of attorneys in Utah who have sought and obtained eligibility to represent defendants in capital cases" sought to interview out-of-state potential witnesses. One of the lawyers and his investigator allegedly advised witnesses not to talk to the police. They were arrested for but never charged with witness tampering. The defendant had waived any conflict that resulted from the incident. The state pressed for disqualification of both lawyers on a theory that they would be distracted by the need to defend their own conduct. The trial court had ordered one of the two lawyers disqualified.
The court here noted that every witness that was allegedly instructed not to talk to police ultimately did so. "We view the identified conflict to be of very little consequence and therefore waivable." The "potential conflict is not serious enough as to render it beyond the power of [the client] to waive..." The lower court erred in disqualifying one of the two lawyers. The matter was remanded to allow an inquiry into whether the client will waive the potential conflicts as to the second attorney. (Mike Frisch)
Conversion With Mitigation Results In Suspension
The Georgia Supreme Court imposed a one-year suspension of an attorney who had converted over $44,000 of settlement proceeds in a workers' compensation case. The Special Master had found that the attorney suffered a mental breakdown and attempted suicide shortly before the conversion. He now has "a healthy and positive mental state" and had repaid the converted funds. The court found that "the mitigating factors are sufficient to overcome those aggravating factors" which include that the conduct was not accidental or negligent and that there was a four-month delay in paying the client. (Mike Frisch)
DePaul Offers Great Symposium May 1 on the Ethics of the BUSINESS of Law
Posted by Alan Childress
The DePaul Business and Commercial Law Journal, with the Commercial Law League of America (site is here), has announced its sixth annual symposium: Lawyers, Law Firms, & the Legal Profession: An Ethical View of the Business of Law. It is upcoming on May 1, 2008, from 10:30 a.m. to 5:00 p.m. "Leading experts, timely issues, and CLE credit are just a few of the reasons to come." Topics include Lawyers in a Fee Quandary: Must the Billable Hour Die?, the Roberts Court, Ghosts from old law firms haunting a new firm, and lawyer discipline and professionalism. It will be held at the Westin on Michigan Ave., Chicago. Here is the program announcement: Download symp_article.doc.
USNWR Reveals Washington Snafu - Top 100 to be Reduced to Top 95According to a report just out, senior editors of US News and World Reports have scheduled a meeting next week with the deans from the law school at Washington University - St. Louis, the University of Washington, the Washington College of Law at American University, and the Washington & Lee Law School to explain why all five are being dropped from this year's USNWR ranking. "We realize now that there was extensive confusion in the peer surveys sent out this year, and we have no reliable way of knowing if the results for those schools are accurate," said an unnamed US News executive. "Several deans also managed to confuse George Mason, Georgia, and McGeorge with those five," he added. The meeting is scheduled for Washington Court House, Ohio.
Reinventing The Wheel
An attorney was convicted on his guilty plea to misdemeanor insurance fraud and suspended from practice for six months in New York as a result of the conviction. New York had held a hearing that explored the circumstances of the underlying offense prior to imposing discipline. The attorney is now reinstated in New York. New Jersey and Florida promptly imposed reciprocal discipline without the need of reinventing the New York wheel.
Unfortunately, the attorney also was admitted in the District of Columbia. There, over the objection of Bar Counsel, the Board on Professional Responsibility ordered a hearing to determine whether the crime involved moral turpitude warranting disbarment. Bar Counsel put into evidence the entire New York record and recommended reciprocal discipline of six months. The Board now agrees with that proposal, but attacks Bar Counsel for not attempting to retry (or try, as it was a guilty plea) the criminal case. As is usual, substantial time and effort has now been expended reaching the conclusion that both Bar Counsel and the attorney had sought. Read the Board report and you will get a sense of the D.C. bar disciplinary system's penchant for turning straightforward matters into complex ones that take years to resolve.
As to the criticism of Bar Counsel, what fresh evidence that was overlooked in New York did the Board expect to be uncovered by D.C. Bar Counsel years after the fact? What facts do they think that New York failed to discover when it investigated and tried the matter years ago? What sensible use of resources is required to try to take up a cold trail when Bar Counsel has a subpoena power that extends 25 miles from the District of Columbia?
I have enough knowledge about the realities of D.C. bar discipline to understand how unfair and groundless the attacks on Bar Counsel are, mostly particularly those contained in the second concurring opinion. (Mike Frisch)