April 8, 2008
Pretexting And Criminal Defense
The web page of the National Organization of Bar Counsel has a very interesting summary of a report in a Wisconsin bar discipline case involving subterfuge by a lawyer defending a criminal case. The lawyer represented a client charged with, among other things, sexual assault of a minor. He believed the alleged victim was lying and set up a plan to establish that he accessed pornography on home and school computers and was considered an untruthful person. He was charged with a Rule 8.4 dishonesty violation. The summary reports:
"The Hearing Referee agreed with all of Hurley’s arguments and concluded that ethics standards had not been violated and that Hurley had not violated the prohibition against engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. Indeed, the Referee determined that Hurley had an obligation under the Sixth Amendment to organize and conduct his private sting operation. She ruled:
Mr. Hurley held a man’s life in his hands. His client faced life in prison. The trial was imminent. He had a reasonable, factually supported, and good faith belief that Scott’s home computer contained exculpatory evidence, making the computer the lynch pin of Mr. Sussman’s defense. He had a reasonable, factually supported, and good faith belief that Scott knew how to and would destroy the evidence on his home computer if he were given advance notice of Mr. Hurley’s suspicions. So, to provide Mr. Sussman with his constitutionally protected right to effective assistance of counsel… Mr. Hurley had to devise a plan to obtain the potentially exculpatory evidence in a way that would not give Scott advance notice… Mr. Hurley faced an extremely difficult calculus: risk violating a vague ethical Rule or risk breaching his duty zealously to represent his client and violating his client’s constitutionally protected right to effective assistance of counsel. The decision Mr. Hurley made was not an unfit one; it was a necessary one. His conclusion that he must pursue potentially exculpatory, lynch pin evidence by means of a deceptive private investigation does not bring into question his fitness for the practice of law. It affirms his fitness as a criminal defense attorney. He acted reasonably and with adequate safeguards. He acted as the Constitution compelled him to act.
The Referee further concluded the disciplinary standard prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation was 'vague as applied.' She made this determination based on the fact that Wisconsin disciplinary authorities have not prosecuted any criminal law prosecutors who 'frequently supervise a variety of undercover activities and sting operations carried out by non-lawyers [and] who use deception to collect evidence,' including misrepresentations as to identity and purpose.
The Office of Lawyer Regulation has appealed the Referee’s decision to the Wisconsin Supreme Court and the matter is on a briefing schedule."
Particularly in light of the recent decision in the Massachusetts law clerk sting case, the case will be worth watching. (Mike Frisch)
April 7, 2008
Three Colorado attorneys were readmitted to practice (summaries linked here, here and here) by order of the Presiding Disciplinary Judge. Although the posted summaries are brief, in each case there was found to be "overwhelming" evidence of character reformation such that readmission was deemed appropriate. (Mike Frisch)
Second Offense Less Serious
An Illinois hearing board has recommended a public censure of an attorney who had previously been suspended for six months for ethics violations. The board explains:
"Respondent’s prior misconduct involved more egregious facts than the present case. The most significant findings of misconduct in Respondent’s prior case were asserting a position in an action he knew would serve to harass or maliciously injure another, making statements of material fact or law to a tribunal which he knew were false, defending a proceeding without a non-frivolous basis for doing so, and engaging in dishonest conduct, conduct prejudicial to the administration of justice and conduct that tends to bring the legal profession into disrepute. Although he represented a client without the client’s authority, he was not charged with or found to have done that. Therefore, we find that the prior misconduct and the current misconduct are substantially different.
Further, Respondent was found to have engaged in the prior misconduct by the Hearing Board in July 2003, and the Review Board in December 2004. The current misconduct occurred between late April 2004 and early June 2004. Importantly, in the prior case, the Hearing Board found that the Administrator failed to prove the misconduct involving Respondent’s representation of Jakubosky, and found misconduct relating to different counts. The Hearing Board recommended a sixty day suspension, stayed in its entirety. The Review Board reversed the Hearing Board’s findings. However, by the time the Review Board issued its decision, the conduct at issue in the current case was completed. Accordingly, Respondent could not have used the Review Board’s decision to modify his conduct in this case. Based on these facts, we give some, but not a significant amount of, weight to Respondent’s prior discipline as an aggravating factor.
Nevertheless, we are astounded by Respondent’s attempt to minimize his prior misconduct. Rather than acknowledging his prior misconduct, he spent a significant amount of time seemingly arguing that the findings of misconduct were incorrect. He believes it is significant that the Hearing Board found no misconduct, and that the Review Board found misconduct in a 2-1 decision. He even goes so far as to argue that the Review Board’s decision violated the applicable standard of review. Respondent fails to give any weight to the most important fact, namely that the Illinois Supreme Court affirmed the Review Board’s decision and imposed a six month suspension. The sanction imposed by the Court is significant and should not be taken lightly. Respondent’s failure to give the Court’s ultimate decision the weight it deserves is nothing short of appalling, and demonstrates Respondent’s complete failure to understand the nature of his prior misconduct."
The board did treat the follwing as mitigation:
"...Respondent’s misconduct is mitigated by his pro bono and charitable activities. Specifically, Respondent is a member of the board of directors of the Single Room Housing Association and the Cermak Single Room Housing Assistance Corporation which provides housing and counseling for the homeless. He is also on the board of directors for the Center for Renter’s Rights. Respondent also makes charitable contributions to the Loyola Law School, Loyola University, the University of South Florida, and a few renter’s rights organizations. For the last ten years, Respondent has purchased Thanksgiving Day dinners for members of a mobile home park where his father used to live. These activities demonstrate a significant commitment to the community."
It is somewhat unusual, but not unheard of, for an attorney who has been suspended from practice to be censured for subsequent, but less serious, misconduct. Let's see if this recommendation is opposed by the Grievance Administrator. (Mike Frisch)
An attorney who had been placed on probation in February 2006 for neglect and failure to return an unearned fee failed to participate in Ethics School, pay costs and communicate with the probation monitor. After the disiplinary board recommended revocation, a joint proposal to extend probation was filed by the attorney and disciplinary counsel. The Louisiana Supreme Court agreed with the proposal and extended probation for one year with conditions. The attorney had paid the earlier-imposed costs. (Mike Frisch)
No Disbarment In Light Of Recovery From Addiction
The Louisiana Supreme Court imposed a three year suspension, nunc pro tunc to December 8, 2000, in a disciplinary matter involving an attorney with "a long history of alcohol and drug abuse" who had been on disability inactive status since that date. While the appropriate baseline sanction for the misconduct was disbarment, the court considered the fact that he had remained free of alcohol and drugs since being admitted to treatment. He also is required to make resitution to his victims. (Mike Frisch)
When Lawyers Split Up
A dispute between two lawyers who had been associated with each over entitlement to fees in two cases after the junior lawyer had departed was addressed in a lengthy opinion of the Nebraska Supreme Court. The attorneys had a complex written agreement. The court ruled that an aspect of the agreement with respect to one of the matters violated the restrictions on right to practice provisions of Rule 5.6 and was thus void on public policy grounds. (Mike Frisch)
April 6, 2008
A Guide To The D.C. Rule Revisions
I have now had the opportunity to study the new Rule XI (rules governing bar disciplinary procedure) provisions that were issued last Thursday by the District of Columbia Court of Appeals. Overall, it appears to me that the court did not blindly adhere to the proposals of the Bar's Disciplinary System Review Committee (a secretive, highly insular group of bar insiders who, in my view, were more interested in the status quo and the primacy of the Board on Professional Responsibility than in meaningful reform) and thus have made significant improvements to the disciplinary system.
1. The rule on consent dispositions (section 12) strikes a fair balance between the need to give Bar Counsel discretion to resolve matters by agreement subject to reasonable oversight and the public's right to understand the basis for the decision. Unlike the committee's proposal (designed to make consent dispositions impossible as a practical matter), the final rule cuts the board out of the process entirely, removing a level of review. The proposed disposition goes to a hearing committee, which conducts a proceeding (open to the public) that looks like a guilty plea (the hearing committee "shall hold a limited hearing"). The chair may review Bar Counsel's full investigative file in camera and discuss the recommendation ex parte with Bar Counsel. If the disposition is approved, it goes directly to the court for final action. There is no prohibition against consent dispositions in matters of first impression, no prohibition on "plea bargaining" and no review by the board. All of these provisions were in the proposed rule and not adopted by the court, which will thus review consents without the board's intervention. This new rule might actually work. The proposed rule was designed NOT to work.
2. The reciprocal discipline process (which is a significant portion of the cases in the District of Columbia) has been streamlined. If the attorney does not respond to a show cause order why identical discipline should not be imposed, the court will order identical discipline without referring the matter to the board, unless Bar Counsel objects. As a result, only contested matters will go to board. As I would estimate that 90-95% of lawyers will not respond to the show cause, this new rule (section 11) will have a dramatic and favorable impact on Bar Counsel's work load. Bar Counsel can use the resource savings to focus on prosecutions in original matters.
3. The new rule on defaults (where the accused attorney does not appear or participate) was a victory for the committee. In other words, it is useless. Bar Counsel must present its evidence and the accused attorney may seek to vacate the default thereafter. Bar Counsel may as well just prove its case rather than invoke the default procedure. I predict that is precisely what will happen.
4. The court fixed a problem in reciprocal discipline by amending its rules to make clear that sanctions imposed pursuant to authority delegated by a court are entitled to reciprocal treatment. The prior rule required the sanction to come from a tribunal with authority to suspend or disbar, which had led to complications.
5. A new rule (section 9(g)(1-4)) applies when the board recommends suspension with fitness or disbarment. The rule will require the attorney to show cause why interim suspension should not be imposed pending final court action. A useful public-protection measure to get bad lawyers out of practice at an earlier point in time.
In fairness, I must recognize the political courage of the present board. To its credit, the board filed comments with the court opposing the committee's unworkable rule and proposing its own amendments to the consent discipline procedure. I believe that the board's comments were the crucial factor in the rejection of the committee's proposal. I applaud this very important show of independence from the organized bar. It should result in great benefit to the efficient operation of the D.C. disciplinary system. Because one effect should be a significant reduction in the board's workload, perhaps some much needed discipline can be brought to the board's bloated budget and staff.
Overall, the court did a fine job in considering points of view other than those of the review committee. I am most hopeful that these amendments will bring greater efficiency and fairness to the disciplinary process. These new provisions should be welcomed by all concerned with the integrity of the legal profession in the District of Columbia. (Mike Frisch)