Legal Profession Blog

No Restitution In Misappropriation Case

The D.C. Board on Professional Responsibility has filed a report recommending disbarment in a case involving intentional (or at least reckless) misappropriation and related dishonesty. The attorney had converted over $9,000 in entrusted estate funds. Two notable aspects of the case. First, it appears that a matter docketed for investigation less than two years ago has worked its way from hearing committee to board to court with lightning speed by D.C. standards. Second, even though the lawyer has been "unjustifiably enriched" the board concludes that restitution should not be required for reinstatement because "the estate has been made whole by the surety that [the attorney] paid to guarantee the assets of the estate... the relationship between [the attorney] and her surety was not an issue of which there is evidence...nor is it an issue that is within our competence."

What "competence" is needed to fashion a sanction that prevents the unjust enrichment of the lawyer? Seems to me that, under the circumstances, the lawyer should be required pay the restitution to the client security fund if reinstatement is sought. Such a result would be preferable to allowing the reinstatement of an attorney who kept misappropriated funds. (Mike Frisch)

All In The Family

The Illinois ARDC has filed disciplinary charges charging two lawyers as co-respondents in alleged misconduct in connection with real estate transactions. According to the charges, one lawyer had a prior relationship with two people who operated businesses that offered mortgage broker services and handled foreclosures. The lawyer set up his law practice within the offices of the clients. He employed a paralegal and hired a lawyer (also charged) as an independent contractor. The two lawyers are brothers-in-law. The multi-count charges allege conflicts of interest, breach of fiduciary duties, dishonesty and failure to supervise the paralegal. The junior lawyer is also charged with criminal conduct for false notarizations. (Mike Frisch)

Not In Good Standing

The Maryland Court of Appeals disbarred a lawyer "found to have made knowingly false statements, amounting to perjury, as to his bar status, and to have acted to mislead and defruad investors" and who failed to participate in the disciplinary proceedings. The attorney was admitted in Maryland and the District of Columbia but was not in good standing in either jurisdiction after 1997. In 1999, he moved for pro hac vice admission in the United States District Court for the Northern District of Illinois, asserting he was in good standing in both jurisdictions. He engaged in unauthorized practice by acting as corporate legal counsel without a license in any jurisdiction and approved the issue of a fraudulent press release that "greatly inflated" assets in order to induce potential investors to place their assets with the company for which he was general counsel. (Mike Frisch)

Specialist Recertification Denied

The Supreme Court of Hawai'i denied a lawyer's petition for renewal of certification as a specialist. The order recites that:

"Upon consideration of the Verified Petition for Renewal of Certificate of Specialization submitted by Petitioner..., Exhibits A and B, and the record, it appears Petitioner...has submitted insufficient proof that she meets the requirements for recertification set out by Rule 1.13(g) of the Rules of the Supreme Court of the State of Hawai'i (RSCH). Although Petitioner...has submitted a copy of the specialist certificate issued by an ABA accredited program, i.e., the National Elder Law Foundation (NELF), which is valid until April 16, 2008, Petitioner...has not provided (1) evidence showing completion of at least six hours of ABA accredited Continuing Legal Education courses in the subject area for each of the five years preceding the application for renewal, and (2) proof she has maintained certification by NELF, the ABA accredited program by which certification was initially granted. Having failed to demonstrate proof that Petitioner...meets the requirements of RSCH 1.13(g),

IT IS HEREBY ORDERED that the petition for renewal is denied. This denial is without prejudice to: (1) reconsideration upon submission of evidence Petitioner...has met the requirements of RSCH 1.13(g), within 30 days after entry of this order, or, (2) after 30 days, submission of a subsequent petition that includes the required proof." (Mike Frisch)

An Article on MPRE Passing Score, From the Inside

Posted by Alan Childress

Apropos the posts here and here on the MPRE minimum passing score (our hat tip to John McSweeny), consider this brief article by the Director of Testing for the NCBE, Susan Case: Download Testing.pdf

Dr. Case notes that most people assume the MPRE requires a higher passing score or performance than it usually does.  One recent administration of it, for example, required a taker to get less than half right in order to pass the standard set by many states.  Even in the toughest states, one would only need to answer 27 of 50 right on that exam. 

Still, in my opinion, it can be a tough exam, as evidenced by the mean score of less than 100 (i.e., the average person, with all his or her credientials and training, answering about 65% right).  It cannot be "winged" or just answered intuitively, even for generally ethical people.  The questions and answer choices can be too subtle for faking it.

Supporting The Troops

The always-entertaining New York State Commission on Judicial Conduct ordered the censure of a justice of the Farmington Town Court for dismissing a speeding charge based on ex parte communications with a friend, the husband of the defendant. "Such conduct constitutes ticket-fixing, which is a form of favoritism that has long been condemned." Why the lenient disposition?  According to the majority:

"Several factors in this case indicate that censure, rather than removal, is appropriate.  It is apparent that respondent was motivated in significant part by the desire to provide 'a very small token of thanks' to an acquaintance in the military who was then serving in Iraq.  While this does not excuse respondent’s actions, it appears that his judgment was clouded by that fact and by his desire to make what he viewed as a patriotic gesture.  We also note that respondent has an otherwise unblemished record in five years as a town justice.  Thus, after a careful review of the facts, we conclude that this episode warrants censure, rather than removal from office.  We continue to regard ticket-fixing as extremely serious misconduct and underscore that such conduct will be condemned with strong measures. "

The dissenters are not buying censure:

"As Jack Nicholson’s military command character in 'A Few Good Men' said under withering cross-examination, 'You can’t handle the truth.'  Nor can Judge Lew.  The truth is that Judge Lew is guilty of ticket-fixing and much more:  his mendacious defense of patriotism and propriety clash and conflict, revealing a judge who is a danger to a public that he will serve only when it is convenient for him to follow the law.  He should be removed."

One of the lawyers for the Commission has a name appropriate to the case: Stephanie A. Fix.

(Mike Frisch)

More on the MPRE Minimum Passing Score, How Do States Pick a Number?, and California Takers Just Dodged a '100' Bullet

Posted by Alan Childress

We had this guest-post last week, discussing the MPRE passing score and where certain scores fall on a distribution or curve.  After, guest-poster and statboy Dr. John McSweeny wrote these follow-up thoughts (including some specific pass rates for certain MPRE scores):

I would have loved to be the fly on the wall when the discussions took place at various state bars about what cut points to use, especially given that there appears to be no validity data.  That is, we don't really know what score, if any, predicts a career of ethical practice. 

The discussions must have boiled down to how many students they were willing to pass (or flunk).  A score of 85 passes roughly 75% of the takers, a score of 80 passes a little more than 85%, and a score of 75 passes about 90% of all takers. 

What about those states that use odd figures like 79 or 86?  Were these numbers the result of compromises made by a committee? Of course, there is no logical or mathematical reason for preferring a nice, round number like 85 instead of 86.  They just seem more aesthetic if they are divisible by the number of fingers on one of our hands!

I don't know the answer to the how-they-chose question, though I welcome comments and links to any source that explains the policies or politics behind these.  I note, however, that California long had a relatively easy passing score of 79, then its Committee of Bar Examiners published this 2004 proposal that would have made the passing score 100.  By John's numbers, assuming the national mean is close to the median (and I would hope it is), that would have meant that California would have switched from passing more than 86% to flunking over half!  It is pretty hard to justify such a major change of policy, and a passing score so much higher than everyone else's. 

And can we really say that those at the top of a bell curve are really distinguishable and worthy of minute parsing which would result in huge impact on careers for similar-scoring people at the national median?  That the average candidate is unworthy of becoming a lawyer?  I can live with the arbitrary line-drawing at the left tail where the candidates have already missed a lot of questions, but I am uncomfortable with labeling an above-average kid who got a 99 as unethical while his friend making a 100 lucks out.  (Especially if the difference is not in the raw numbers of questions missed, but rather in the scaling done after to correct for a historically 'easier' exam, by a hair.)  Anyway, it seems inherently wrong to me to focus any crucial cut point at the top of a bell curve!

California did wind up -- its says here in this official notice dated Dec. 2005 -- raising its passing score to 86, effective Jan. 2008.  Takers in the fall or earlier can pass with the old lowbar, 79.  That now makes California at the highest end of state minima, compared to almost all states.  (See this 2005 summary chart, state-by-state [though it still shows Cal as 79, and keep in mind that New York is now 86 85], or this chart from 2004 also by states).  Cal's new 86 bar is still quite a jump from that lax 79 legacy.  (Here is an Inter Alia blog post on the switch to 86, and also this one from John Steele in '05.)  I don't know how 86 was picked over 100, though I assume it was a choice -- a public statement -- to be the highest/hardest anywhere (tied with Utah and just above New York), if not that euphonic 100.  At least the above-average test-taker will not flunk, to piss off Lake Wobegon.

UPDATE:  See article on MPRE statistics from Dr. Susan Case, head of testing for NCBE, here.

Timely Filing Of Retainer Statement Required To Sue For Legal Fees

The New York Appellate Division for the First Judicial Department held that a law firm suing for legal fees was precluded from doing so by the failure to timely file the fee agreement, which is a prerequisite to a claim for fees:

"The motion court properly granted defendants summary judgment to the extent indicated in this fee dispute between attorneys, where plaintiffs failed to file retainer statements in compliance with Rules of the Appellate Division, First Department (22 NYCRR) § 603.7(a)(3), "a prerequisite to receipt of compensation for legal services" (Rabinowitz v Cousins, 219 AD2d 487, 488 [1995]). Plaintiffs' belated filing of several of the subject retainer statements was insufficient to preserve their right to recover legal fees. Indeed, the record shows that these statements were only filed in response to defendants' motion for summary judgment and plaintiffs did not seek permission to file the statements nunc pro tunc. Nor did plaintiffs offer a reasonable excuse for their failure to timely file (compare Matter of Abreu, 168 Misc 2d 229, 234 [1996])." (Mike Frisch)

Affidavit Disclosed After Death Of Client

Courtesy of the web page of the North Dakota Supreme Court comes a report from the Grand Forks Herald about an affidavit that confirmed that an innocent man had been convicted of the murder of a police officer and had been imprisoned for 26 years. The client who had provided the affidavit had died in prison and his lawyers--with a judge's permission-- then revealed the contents of the affidavit. A hearing is now scheduled but, as reported, "an affidavit and sworn testimony do not guarantee freedom..." The link to the article can be found here. (Mike Frisch)

Cover Up Worse Than Underlying Misconduct

A lawyer was suspended for six months by the New York Appellate Division for the Second Judicial Department based on findings of misconduct that included failure to cooperate with the disciplinary investigation and misrepresentations to the Grievance Committee. The sanction was deemed appropriate based on the following:

"In determining an appropriate measure of discipline to impose, the Grievance Committee notes that the respondent has no prior disciplinary history. The Special Referee found that the respondent had engaged in a pattern of conduct that demonstrated irresponsible behavior in the conduct of his duties as a lawyer. In addition to his failures to cooperate, the respondent misled the Grievance Committee with respect to the status of two lost money orders and negotiated two others that he had purportedly sent to OCA. At his May 24, 2006 deposition, the respondent conceded that he had been dishonest with the Grievance Committee with regard to when he received reimbursement of the lost money orders and when he replaced them. The respondent admittedly faxed a notification to the Grievance Investigator indicating that he would check with the Post Office when, in fact, he had already been reimbursed and had used that money for expenses relative to his father-in-law's care." (Mike Frisch)

Contingent Fees In Massachusetts

The Massachusetts Supreme Judicial Court vacated the order of a single justice and directed Bar counsel to issue an admonition in connection with charges relating to the attorney's contingent fee agreements. The attorney operates a high-volume personal injury practice. The court's opinion summarizes its holding:

"Bar counsel appeals from the decision of the single justice dismissing the petition for discipline of an attorney. Principally at issue is the propriety of certain provisions in the attorney's form contingent fee agreement that go beyond the terms of the model contingent fee agreement set out in the Massachusetts Rules of Professional Conduct. Bar counsel also challenges the attorney's conduct in misrepresenting the existence of a statutory lien pursuant to G.L. c. 221, § 50, in failing to notify one client promptly of his receipt of personal injury protection (PIP) funds, and in refusing to provide another client's successor counsel with a statement of his reasonable time and expenses after his discharge by the client.

We conclude that the attorney committed professional misconduct in knowingly misrepresenting on several occasions to insurers the existence of a statutory lien under G.L. c. 221, § 50, in his favor, and in failing to notify and inform his client promptly about his receipt of PIP funds for the client. We further conclude that an admonition is the appropriate discipline for this misconduct.

In the circumstances of this case, we disagree with bar counsel's claims that discipline should be imposed because of the challenged terms of the attorney's contingent fee agreement. However, looking to the future, we doubt whether it is appropriate for a contingent fee agreement to contain a provision--as the attorney's agreement did in this case--giving a lawyer, on discharge by the client before termination of the matter for which representation was sought, a right to recover an amount greater than the fair value of the lawyer's services and expenses up to the date of discharge. In addition, to the extent that a lawyer includes terms in a contingent fee agreement that materially depart from those in the model contingent fee agreement included in Mass. R. Prof. C. 1.5(f), as amended, 432 Mass. 1302 (2000), [FN1] we conclude that the lawyer should explain those terms specifically to the client, and should obtain the client's written consent to them. We refer these issues to the standing advisory committee on the rules of professional conduct."

The opinion also holds that contingent fee agreement do not implicate Rule 1.8(a)(business transaction with client) rule. The case is In the Matter of the Discipline Of An Attorney, No. SJC-09757, decided April 11, 2008. (Mike Frisch)