May 9, 2008
Expert Testimony Required
The Kansas Supreme Court affirmed the dismissal of a legal malpractice claim brought by a convicted defendant against his retained counsel. The client was arrested driving a truck that contained more than 3000 pounds of marijuana. He denied knowledge of the drugs but pleaded guilty on the attorney's advice. He claimed that the attorney "spent less than 1 hour with him prior to the disposition of his criminal case." He was allowed to withdraw his plea on a finding of ineffective assistance of counsel and got diversion after serving the sentence. A disciplinary investigation "determined that none of [the lawyer's] actions rose to the level of professional misconduct."
The absence of expert testimony was fatal to the malpractice claim:
The two issues [the client] raised involved matters outside the common knowledge of a lay person. The intricacies of the interplay between state and federal jurisdiction, the customs of a particular court, and the federal law surrounding immigration and deportation are all specialized areas of the law about which a lay juror would not know. Accordingly, we do not believe there was any way Singh could prove deviation from the standard of care without the use of expert witness testimony. The district court properly granted [the attorney's] motion for summary judgment on that issue.
Conviction Reversed As Result Of Improper Argument
The New York Appellate Division for the First Judicial Department vacated a criminal conviction for what it characterized as egregious misconduct by the prosecutor in closing argument:
A reading of the excerpted text from the People's summation clearly illustrates that [acting as an unsworn witness] was what the prosecutor did in this case, except to a more egregious degree. In this case, where two witnesses, both appearing for the prosecution, offered conflicting, contradictory statements about what had happened during the taking of photographs from the observation post, it was obviously defense counsel's duty to draw attention to the inconsistencies. Moreover, defense counsel correctly suggested that, because only one of the statements could be true, one of the witnesses was possibly committing perjury. Further, knowing that the same issue of whether Police Officer Jeselson was in a position to witness the defendant handing the codefendant drugs in exchange for money had led to a mistrial the first time around, it was entirely reasonable for defense counsel to suggest that if perjury was being committed then the police officer had more to gain from it. In turn, this placed the prosecutor at center stage, since he was one of the parties present at the photographic session.
The prosecutor did not deny this. Indeed, he responded to defendant's comments by noting that any impropriety which purportedly occurred during this incident necessarily occurred in front of him, given his presence, but that his very presence made any impropriety unlikely. He also suggested that if he were to prosecute a case, where that type of misconduct had taken place, he should be fired. Further, the prosecutor said he had no explanation for the discrepancy, other than that Badger was mistaken.
On appeal, the People concede that the prosecutor vouched for Officer Jeselson, and that there are virtually no cases in which summation remarks, like those in this case, are made by an Assistant District Attorney. Nevertheless, the People argue that the prosecutor's summation was a necessary response to "a very personal defense attack" and that the prosecutor could not just "roll over" without reply.
A dissent disagrees (as dissents usually do):
A claim of prosecutorial misconduct on account of certain statements made by the prosecutor on summation is the principal issue presented on this appeal. I would affirm as I believe the prosecutor responded in a restrained manner to a reprehensible and unsupported personal attack on his integrity by defense counsel.
A legal malpractice case was filed against a firm that had defended a worker's comp case on behalf of an insurance company. An amernded complaint was filed and served that substituted the insurance company as party plaintiff based on a cliamed assignment of claims from the original plaintiff, the third-party administrator. The trial court held that the amended complaint was barred by the statute of limitations and granted sumary judgment. The insurance company appealed the order of dismissal.
The Mississippi Supreme Court reversed, holding that there was a genuine issue of material fact whether the claims in the amended complaint were the same or seperate from the original complaint. If the claims are not seperate, the relation back doctrine applies and saves the civil action. (Mike Frisch)
Choice Of Disciplinary Law
The Massachusetts Supreme Judicial Court has proposed amendments to its Rule 8.5, governing choice of law in the application of rules of professional conduct. Noting that there is no completely satisfactory solution to choice of ethics law so long as there are state variations of the rules, the court states:
The proposed Rule goes on to follow the principle set forth in the current version of Model Rule 8.5(b) that recognizes that a lawyer's practice in 2008 may primarily affect the interests of another jurisdiction. Following a proviso in the ABA Model Rule, the proposal states that if "the predominant effect of the lawyer's conduct is clearly in another jurisdiction, then the rules of that other jurisdiction shall apply." The focus here is not on the jurisdiction where the lawyer's conduct occurs but on the jurisdiction where the primary effect of that conduct occurs. The formulation of this condition recognizes that the public policy interests of a lawyer's conduct may be so concentrated in another jurisdiction that that jurisdiction's professional responsibility rules should govern the lawyer's conduct. In like manner, Massachusetts professional responsibility rules might well govern the conduct of a State A lawyer who receives confidential information from a client about an impending crime, fraud, or environmental disaster in Massachusetts when State A has adopted Model Rule 8.5(b).
As the example from the above excerpt suggests, the choice of law issue may present itself in evaluating the appropriate response to client fraud. This is an area where the state bar rules vary in significant ways. (Mike Frisch)
Proposed Sanction Deemed Insufficient
The Iowa Supreme Court rejected the proposed six-month suspension recommended by its Grievance Commission and imposed a two-year suspension for neglect, failure to provide an accounting and return personal papers of a client and failure to cooperate with the isciplinary investigation. The court reviews attorney discipline matters de novo. While a six-month suspension is within the range of appropriate sanctions for neglect of legal matters, the attorney had a record of prior discipline and the additional violations. The attorney had indicated that he has no plan to resume the practice of law. (Mike Frisch)
Threat Of Litigation Not A Criminal Offense
In an appeal of a conviction for extortion, the Maryland Court of Appeals held a threat to pursue a legal action unless a settlement payment is made does not constitute extortion by wrongful threat of economic harm. The court's summary of its holding states;
There are no criminal sanctions for the initiation or continuation of frivolous civil actions under Maryland law; therefore, a threat to litigate a meritless cause of action cannot constitute a "wrongful" act under Maryland law.
The defendant had accused another person by letter of "stealing $22,000 from him and demanded damages plus interest compounded at nine percent." The letter was addressed to "you filthy [expletives] and is quoted in full in the opinion: "We have taken the liberty of redacting the profanity contained in the letter." The defendant had been an employee of the recipient and was convicted of embezzlement of company funds. The sender "waited 20 years to write this letter. It was December 24, 1984, almost exactly 20 years ago, when you froze my bank accounts, ruined my Christmas with my family, and started a process that would put me in prison for 17 years."
While the addressee never got the letter, a copy had been sent to his attorney ("I'm sending a copy of this letter to [the lawyer]. I may sue him too for being a [expletive] piece of [expletive]." The lawyer brought to matter to the attention of law enforcement authorities. (Mike Frisch)
May 8, 2008
Unwanted Contact Leads To Disbarment
The Kansas Supreme Court accepted an attorney's license surrender and ordered disbarment. The Court briefly summarized the pending charges as follows:
At the time the respondent surrendered his license, review was pending before the Kansas Supreme Court on the final hearing report in accordance with Supreme Court Rule 212 (2007 Kan. Ct. R. Annot. 317). The hearing panel found that the respondent engaged in a conflict of interest when he continued to represent a juvenile after he had inappropriate and unwanted social contact with the mother of the client, failed to provide a timely written response to the Disciplinary Administrator concerning the initial complaint, and engaged in other conduct that adversely reflected on the respondent's fitness to practice law.
Additionally, at the time review was pending before the court, a complaint was pending that alleged [the attorney] engaged in similar inappropriate and unwanted social conduct with another female client.
Taking Unearned Fees Leads To Criminal Conviction
The Illinois ARDC has filed a complaint alleging that an attorney had accepted fees in five matters when he was aware of a recommendation of a two-year suspension and a pending petition for interim suspension. He failed to perform the services and failed to refund the unearned fees. Here, the story takes an unusual turn--criminal charges were brought that resulted in a conviction and 90 day jail sentence followed by two-years of probation. The total fees were slightly under $20,000. It is further alleged that, as of the time that the charges were filed, no restitution has been paid.
Kudos to the criminal prosecutor. I don't imagine that a case like this would attract the attention of many prosecutors around the country as a theft or taking under false pretenses case. I have a memory (which may be failing with advancing age) from my bar counsel days of being told by an AUSA in D.C. that their office wasn't interested in cases of attorney theft involving less than $100,000. Perhaps a form of professional courtesy? (Mike Frisch)
Varmint Hunt Turns Dangerous
Not a legal profession case, but of interest to torts profs is a decision issued yesterday by the South Dakota Supreme Court. A rifle had been left in an automobile after a day of hunting for "varmints such as coyote or fox." On the next day, while the car's ignition was turned on, the rifle accidentally discharged and wounded one of the hunters. The issue is whether the accident was covered by the insurance policy on the car. A majority answered that question in the affirmative, with a dissent suggesting that this does not fit into any sensible definition of a car accident. (Mike Frisch)
An attorney who had been placed on disciplinary probation was found to have violated the probation terms in several respects. The sanction? A sixty-day suspension. However, if the lawyer provides a current address within 14 days, the suspension will be stayed. The Minnesota Supreme Court further ordered that the attorney only practice under the supervision of another Minnesota lawyer and participate in mental health counseling. (Mike Frisch)
Excessive Fee Allegations
The Illinois ARDC recently filed charges that allege that an attorney had claimed excessive fees and breached his fiduciary duties by charging an estate valued at approximately $1.4 million over $212,000 in fees. He also is alleged to have violated the same rules in charging over $100,000 in fees to a related estate. The complaint sets out the bills in some detail. Highlights: "travel to house for leak in basement (crawl), fix and go through file cabinet" 5 hours, "obtain mail and statements, travel to Napierville post office for missing mail" 5 hours, "travel to court to determine any filings" 3.5 hours. (Mike Frisch)
Excessive Sanctions Overturned
The Oklahoma Supreme Court held that sanctions were improperly imposed against an attorney who had violated confidentiality provisions of the Mediation Act by disclosing protected information in a pleading. The court concluded:
The passenger's counsel did not disclose the settlement offer before a jury or even to Judge Lucas, who was presiding over the trial. He made the offending disclosure in a motion for sanctions filed with Judge Hetherington. His disclosure could not possibly have affected the insurer's liability on the underlying claim. While Judge Hetherington did conduct a hearing on the parties' motions for sanctions, the passenger was never given an opportunity to withdraw or amend his motion for sanctions. Imposition of sanctions under these circumstances was premature and excessive. Because the trial court had no authority to sanction the passenger's counsel under §2011(C)(a) and an order of sanctions under the circumstances of the cause was an excessive extension of the trial court's inherent powers, the trial court abused its discretion by sanctioning the passenger's counsel.
The sanction was $2500. The case arose out of an intersection collision. (Mike Frisch)
Judges Can Be Parents Too
A part-time judge may properly participate in a parent's group organized to express concern about the administration of a test to school children, one of whom is the judge's child. The South Carolina Advisory Committee on Standards of Judicial Conduct opines that such participation does not involve the misuse of judicial office. However, the committee expresses no opinion on whether the judge can be fired for his involvement in the parent's group. (Mike Frisch)
May 7, 2008
DC Judge Suing Over Lost Job After His Infamous 67.3M Dry Cleaning Suit
Roy Pearson's latest lawsuit story is on several blogs, but the best reader comment I have seen is on Overlawyered, which this morning reported the million dollar employment suit. The reader Tom T. asks, "Only $1 million? Doesn't that mean his job was worth less to him than his pants?"
Our prior post on his original April 2007 lawsuit is here (also noting the error [which seems to be repeated in the latest stories] that Pearson demanded merely 54 million or 62.2 in some versions). In any event, it just has to be said that this guy has more pants suits than . . . well, you can finish that line yourself.
The Arkansas Supreme Court has held that an attorney who serves as a prosecutor is not disqualified from representing a parent in a proceeding to change child custody when criminal charges are brought against the other parent's current spouse: "...disqualification is not required because there is not a direct conflict of interest nor is this a case of dual representation..."
The case involved a divorced husband and wife who were awarded joint custody of three minor children. The husband noticed bruises on the buttocks of one child that were later determined to have resulted from a whipping administered by the wife's live-in boyfriend. The attorney filed a petition for sole custody on behalf of the husband that was granted. The wife then married the boyfriend, who "repeatedly assaulted [her] while in the children's presence" and stabbed her with a barbeque fork. The same attorney who had handled the custody petition was the prosecutor of the ensuing criminal battery case, which led to a motion to disqualify filed by the wife (who also divorced husband number two).
The court found no conflict and that "proper steps were taken to remove even the appearence of a conflict of interest" in that the prosecutor removed himself and his staff from the case and a special prosecutor took over. Withdrawal from both cases was not required. (Mike Frisch)
The Delaware Supreme Court affirmed the decision of its Board of Bar Examiners denying an applicant's petition for partial certification of qualifications to sit for the bar examination. The applicant is a member of the Bucharest, Paris and New York bars and is presently a clerk for a (recused) justice of the court. The Board concluded that the LL.M. that the applicant had received from Harvard Law School "is not the equivalent of a juris doctor degree from an ABA-approved law school" and that the board "does not have the authority to waive any of the Supreme Court Rules or grant exceptions to those Rules."
The Board was within its discretion, supported by the law school accreditation standards of the ABA, as well as scholarly opinion, to conclude that [the applicant's] one-year LL.M. degree was not the functional equivalent of a three-year J.D. degree and, moreover, that [her] legal education in European civil law, her experience working for an American law firm for several months, plus her experience working as a law clerk for one year was insufficient to bridge the gap between her LL.M. and a J.D. degree
It seems to me that this applicant is sufficiently credentialed to be allowed to sit for the bar exam. If the rules in Delaware do not permit her the opportunity to prove her competence through taking and passing the bar, perhaps those rules should be amended. (Mike Frisch)
Driving On Suspended License Leads To Suspension Of License To Practice Law
The Pennsylvania Supreme Court imposed a six-month suspension of an attorney who had continued to drive while his operator's license was suspended or revoked, got into an accident and drove away. He was located through his license plate number, convicted and sentenced to a 60 days served on weekends. He had 10 convictions for driving under suspension. His attitude had been "I'll pay the fines and do it" but he is now remorseful. (Mike Frisch)
No Privity, No Cause Of Action
The Ohio Supreme Court has held that a beneficiary of a will may not maintain a negligence action against the attorney of the decedent for the preparation of a deed that resulted in an increased tax liability for the estate: "an attorney is not liable to third persons arising from his good-faith performance of acts on behalf of the client." The rule requiring privity to sue may only be overridden in circumstances that establish "fraud, bad faith, collusion or other malicious conduct."
A concurring opinion does not view such a cause of action for the beneficiary as creating a conflict of interest and favors accountability in will preparation: "...if presented with a different set of facts, [the concurring justice] would be in favor of revisiting [the court's] decision [in earlier cases]..." (Mike Frisch)
Lawyers in Love and Control
Posted by Jeff Lipshaw
I am a great fan of Richard Ford's Frank Bascombe trilogy (The Sportswriter, Independence Day, and The Lay of the Land), and for our two-car caravan from Cambridge to Michigan, my wife Alene gave me the audio tape of Ford's 2003 collection of short stories A Multitude of Sins, most of which I listened to on the way. The stories are mostly about infidelity (and of that infidelity, mostly marital), but many of the characters are lawyers. Why that is so could be the subject of another entire post, but Jackson Browne may also have had an insight.
One of the stories had a coda so moving that I replayed it several times, and I stopped at a Borders to buy a copy of the book just to read it again. In "Calling," the narrator recounts an incident from his New Orleans boyhood, in 1961, when he was sixteen and home from a Florida military school. His father, the product of an Uptown society family, has been out of the house for a year, having been expelled from the hundred year old law firm that bears the family name, and now lives in St. Louis with his homosexual partner. His mother, an aspiring singer, has taken as her lover a black jazz musician who by day purports to be the caretaker for the family home. As in much of Ford's writing, not much happens; instead we experience what happens through the minds of the participants, as if in slow motion, dissecting the nanoseconds in which thoughts occur. The incident here is a duck hunting excursion with father and son in the bayou, and what happens is not important to my point.
This is the part that that I replayed:
That morning represented just the first working out of the particulars I would observe evermore. Like my father, I am a lawyer. And the law is a calling which teaches that most of life is about adjustments, the seatings and reseatings we perform to accommodate events occurring outside our control and over which we might not have sought control in the first place. So that when we are tempted, as I was for an instant in the duck blind, or as I was through all those thirty years, to let myself become preoccupied and angry with my father, or when I even see a man who reminds me of him, stepping into some building in a seersucker suit and a bright bow tie, I try to realize again that it is best just to offer myself release and to realize I am feeling anger all alone, and that there is no redress. We want it. Life can be seen to be about almost nothing else sometimes than our wish for redress. As a lawyer who was the son of a lawyer and the grandson of another, I know this. And I know not to expect it.
Control (or imagined control) over contingency is a theme to which I return over and over again in my own writing. We have a predisposition to find order in chaos, and the model offered by the law is only one of many. We resist the idea of meaninglessness (or entropy of meaning?), whether by means of natural law, or by a faith in the naturalistic regularities of science. Redress is a model of satisfaction, but it is not satisfaction.
May 6, 2008
"An Intolerable Conflict Of Interest"
The New Jersey Supreme Court held today in a unanimous opinion that an attorney who had represented a juvenile charged with murder had "an intolerable conflict of interest" and thus provided ineffective assistance of counsel by failing to disclose to his client that he (the lawyer) was a defendant in a case being prosecuted by the same office that was handling the juvenile's case. The court found a per se conflict and that prejudice is presumed. There had not been disclosure and informed consent to the conflict. The attorney had been charged with criminal stalking and later was given pretrial diversion. The court states:
The stakes are high in a criminal case with the client's freedom often hanging in the balance. With so much on the line, an attorney's self-interest should never interfere with the duty of unstinting devotion to the client's cause. An attorney should never place himself in the position of serving a master other than his client or an interest in conflict with the client's interest. Surely, an attorney must never be perceived as having a reason to curry favor with the prosecutor's office at the expense of his client.