Friday, January 11, 2008
The Illinois ARDC has filed charges in a matter involving allegations that the attorney had been convicted of alcohol-related traffic offenses in 2001 and 2005, attempted to overreach an attorney-client relationship by pressing a domestic relations client to date him, and:
"...Between approximately 1991 and 1997, on at least five separate occasions, Respondent made audiovisual tape recordings of his sexual activity with women in the bedroom of his home in Lincoln, Illinois. Respondent taped himself and a different woman on each occasion. At least three of the women were Respondent's previous clients in dissolution of marriage matters. One of the women was Respondent's secretary in his law offices.
...On each of these occasions, Respondent activated the video camera and made the audiovisual tape secretly from, and without the knowledge or consent of, his sexual partner. Respondent positioned the video camera in a closet so that his partner would not observe it.
...On each of those occasions, the recording that Respondent made included audio as well as video.
...On each of those occasions, Respondent knowingly and intentionally used the video camera for the purpose of recording all or parts of his conversations with his sexual partner, as well as for the purpose of making a visual recording."
The Administrator alleges that the above-described conduct was criminal conduct in violation of laws prohibiting eavesdropping, although it does not appear that the accused attorney had been convicted. Like Model Rule 8.4(b), Illinois Rule 8.3(a)(3) does not require a criminal conviction for a violation to be established. (Mike Frisch)
An Illinois Hearing Board has recommended that an attorney disbarred in 1988 as a result of a mail fraud conviction be reinstated to practice. He had served a term of imprisonment and been charged with domestic battery in 1997. He pleaded guilty to a misdemeanor charge of reckless conduct ("although he believed he was innocent of any charges, he did not feel he could prevail with a female prosecutor and a female judge"). He owes restitution and had set up an account in an amount that had been proposed by an earlier board report ("if the proper recipients can not [sic] be ascertained, he will be happy to donate the money to any organization designated by the panel").
As to present learning in the law, the board states:
"The Administrator expressed some dissatisfaction with Petitioner’s attempts to stay abreast of legal developments, specifically targeting his statement that he watches court TV. While we give no credit to that activity as an educational tool, Petitioner’s statement should not detract from his more substantive accomplishments, that is, his attendance at six day-long continuing legal education classes, his completion of the ARDC class in professional responsibility, and his daily review of a legal newspaper. We believe he has shown a commitment to keeping up-to-date with respect to legal developments, and note that his effort is equivalent to that of other attorneys who have been reinstated." (Mike Frisch)
Thursday, January 10, 2008
Posted by Alan Childress
I wrote this email to a colleague this morning. She is a new prof at school here at Tulane and has a five-year-old child:
We were talking about Mardi Gras this morning when you rushed off to teach a class—I question your priorities—and I wanted to say to you that there are two myths about Carnival worth exploding.
Myth One is that Mardi Gras is wild and raunchy and only fit for spring break wannabees. OK it is, in parts of the city where it simply is and always has been. I still remember the look on my mother’s face the first time she saw a big biker guy in a thong, and we are not talking his footwear. That was in the French Quarter on Tuesday itself. But on most of the parade route (and all near where you live) it is actually a family event with no discernible flashing or wildness, other than a plague of children vying for the same beads and doubloons (tell your kid: 'use your foot, not your hands, to capture the doubloon, unless you like flat knuckles'). It is picnic blankets on the median (“the neutral ground”) and tossing nerfballs between parades. It is throwing beads back at the huge gorilla float. It is children atop ladders with a better angle. It is scoring loot off a float from the pre-school teacher who is masked but calls your kid’s name out of the blue.
Most of the parade routes are spent most of the time in residential areas where the only immoral imperative is to find a friend who lives nearby with indoor plumbing. Or get the all-you-can-go bracelet (only 10 bucks I think) from the Raine church on St. Charles Avenue which makes this their biggest fundraiser for the year. In any event, your family—and you—will have a blast because the parade season you are about to experience is not like anything you have ever done or seen, and is really not like anything you even see on TV about Mardi Gras where the “wild on” aspect is highlighted from near the Quarter.
Myth Two is that Mardi Gras is on Mardi Gras, on Tuesday itself. That day is a great culmination, with Zulu, Rex, and family truck parades. Really, though, Carnival is a fortnight-long process, with tens of parades long before Fat Tuesday. Some of the best and most family-friendly (not as crowded) parades will start soon (sooner than ever this time, since Ash Wednesday falls really early this year). So you will have plenty of weeknight and weekend-day parades to go to, way before Harry Connick Jr. returns to town on Lundi Gras. If you have friends from out of town who want to come for parades and king cake parties but cannot make the four or five days before Feb. 5 (this year), tell them to come the week or weekend before that. They’ll still have a blast. Buy an Arthur Hardy’s Guide with detailed history and calendars at any store around (they are fantastic and can be mail ordered), or find a parade calendar online, and you are set to go. Order a king cake online or pick one up anywhere, all with a plastic baby embedded and awaiting your teeth. I envy you the opportunity to experience this for the first time, and through the eyes of a kid at that. Have fun!
The Supreme Judicial Court of Massachusetts today affirmed decisions of its Clients' Security Board in two matters, rejecting the contentions of dissatisfied claimants. In the Indeck case, the applicant had been awarded $150,000 after entrusting her life savings of $569,000 to her lawyer. The lawyer had paid back interest of more than $900,000, which the fund treated as a return of principal that mitigated the loss. The court concluded that "board decisions...do not give rise to the substantial injury or injustice necessary for certiorari review." In the Audoire case, the board awarded the claimant over $152,000 but expressly conditioned payment on the execution of an assignment agreement to recoup the payment from a settlement trust set up to compensate the lawyer's victims. The court concluded that the assignment was "not void and contrary to public policy" and was not invalid in light of a contingency agreement between the complainant and her present lawyer. Compensation from the board "shall be a matter of grace, not right..."
This link should take the reader to the court's web page for access to the opinions. (Mike Frisch)
The Florida Supreme Court rejected a referee's recommendation of a three year suspension and disbarred an attorney who had admitted twenty violations of ethics rules, including misappropriation. The attorney had been a public defender, in private practice and returned to the public defender's office. The misconduct involved numerous problem that occured in 2004-2005 while in private practice.
The attorney confirmed a problem with alcohol and painkillers. Her mother had died and she was diagnosed with melanoma in her leg "which further increased [her] reliance on alcohol and drugs." However, according to the court: "While we sympathize with the problems respondent had in her personal life, and understand the problems associated with substance abuse and what it can do to a person's life, we cannot condone respondent's behavior. We have a responsibility to citizens of this state. There is never a vaild reason for taking client funds or for completely abandoning clients." A concurring/dissenting opinion notes that the referee found that the misappropriation was negligent rather than intentional and would impose the three year suspension.
Given the referee's finding on the crucial issue of level of intent, this result seems unduly harsh. A three year suspension would not, under these circumstances, "condone" the misconduct in the eyes of an informed citizen of Florida. (Mike Frisch)
There are some interesting posts on the Qualcomm decision over on Legal Ethics Forum. I've taken another look at the discussion of attorney misconduct and the court's decision to refer six attorneys to the California State Bar for possible disciplinary action. Some thoughts:
The court "envisions four [possible] scenarios" and concludes that "the lawyers suspected there was additional evidence or information but chose to ignore the evidence and warning signs and accept Qualcomm's incredible assertions regarding the adequacy of the document search and witness investigation" is the most likely explanation. The court notes (footnote 8) that its fact-finding was hamstrung to a degree by Qualcomm's assertion of the attorney-client privilege ("Several attorneys complained that the assertion of the privilege prevented them from providing additional information regarding their conduct...concern was heightened when Qualcomm submitted its self-serving declarations describing the failings of its retained lawyers").The court then describes the found misconduct in the terms of "lawyers chose not to look...to accept unsubstantiated assurances...to ignore the warning signs...not to press...for the truth, and/or to encourage employees to provide the information..." Finally, the court sets out in detail in Appendix A the professional background and relative seniority of a number of Qualcomm lawyers including the Sanctioned Six.
What will the California Bar do with this? First, it cannot rely on any concept of collateral estoppel based on the district court decision. The bar will have to conduct its own investigation and decide whether to file charges. Investigations are confidential unless and until charges are filed. Second, the bar cannot sanction firms. Charges must be filed and proven against individual lawyers. Third, California privilege is governed by statute and Rule 3-100 of the California Rules of Professional Conduct, rather than a version of Model Rule 1.6. This could significantly impact on the issue of the extent to which the lawyers may respond to and defend against any charges, which would clearly be allowed by Model Rule 1.6(b)(5). Fourth, it will take awhile to sort it all out, particularly if disciplinary counsel defers action until all related appeals are resolved.
If charges are filed, it is possible that some or all of the Sanctioned Six would be the subject of a single charging document that alleges that the attorneys acted in concert without attempting to sort out in detail the specifics of the misconduct as to each individual lawyer. Such charges would put the accused lawyers in a posture where they would likely testify in their own defense and point fingers at the others. The process would be complicated by the fact that some of the accused may be supervised by other accused lawyers in the same firm. This creates an unenviable dilemma for the junior lawyer of whether to take blame or attempt to foist it on a supervisor. I've dealt with this problem as a disciplinary prosecutor and the junior lawyer generally either walks the plank or leaves the firm or both.
The bar will have to deal with difficult issues of assessing the relative responsibility of supervised and supervising lawyers as well as lawyer/client relative culpability. A further complication will be the level of cooperation the bar gets from the former client and the reliability of Qualcomm's contentions if it chooses to cooperate. I don't expect this will be resolved promptly and don't envy the task. Meanwhile, the Qualcomm decision provides plenty of food for thought and for meaningful discussion with students taking professional responsibility. (Mike Frisch)
Wednesday, January 9, 2008
In New York, disbarment is automatic for a felony conviction under New York law. For other felony convictions, the courts impose automatic disbarment where the conviction amounts to felony under New York law. Thus, an attorney convicted of a RICO crime will not be summarily disbarred because there is no state RICO offense. However, the Appellate Division for the First Judicial Department applied the automatic disbarment rule against an attorney convicted of making a false statement pursuant to 18 U.S.C. section 1001, notwithstanding the absence of a comparable state felony. The court reasoned:
"The federal felony of making a false statement does not have a direct felony analog under New York law. However, it is undisputed that under respondent's plea agreement and during the plea allocution she admitted to engaging in conduct constituting the New York felony of scheme to defraud in the first degree. The New York felony requires proof that the defendant intentionally engaged in a scheme to defraud one or more persons by means of false pretenses, representations or promises, and thereby obtained property in excess of $1,000...
Specifically, respondent admitted to participating 'in a scheme to defraud and to obtain money and property, including a contract worth approximately $49 million, as well as funds actually paid pursuant to the contract, from Cook County by means of materially false and fraudulent pretenses, representations and omissions of material facts.' Since these factual admissions demonstrate that respondent was convicted of a New York felony as defined by Judiciary Law § 90(4)(e), automatic disbarment is appropriate." (Mike Frisch)
The decision of the United States District Court for the Southern District of California in the Qualcomm discovery sanctions matter is linked here. In sum, the court imposed sanctions and referred six attorneys to the State Bar of California for possible disciplinary action where the plaintiff client had failed to produce emails that were clearly requested in discovery and witnesses had testified falsely on an issue that "became crucial to the...litigation." A witness had identified 21 seperate emails that cast doubt on the client's key contention but counsel did not produce the emails or conduct a further search. After the trial, Qualcomm's general counsel "admitted Qualcomm had thousands of relevant unproduced documents and that their review of these documents 'revealed facts that appear to be inconsistent with certain arguments that [counsel] made on Qualcomm's behalf at trial and in the equitable hearing following trial' " There were over 46,000 such documents.
"For the current 'good faith' discovery system to function in the electronic age, attorneys and clients must work together to ensure that both understand how and where electronic documents, records and emails are maintained and to determine how best to locate, review, and produce responsive documents."
"It is inconceivable that these talented, well-educated, and experienced lawyers failed to discover through their interactions with Qualcomm any facts or issues that caused (or should have caused) them to question the sufficiency of Qualcomm's document search and production...the Court finds that these attorneys did not conduct a reasonable inquiry into the adequacy of Qualcomm's document search and production and, accordingly, they are responsible, along with Qualcomm, for the monumental discovery violation."
The court awarded the defendant "all of its attorneys' fees and costs incurred in the...litigation." Because such costs had previously been awarded, Qualcomm receives "credit towards this penalty for any money it pays to [defendant] to satisfy the exceptional case award." The court referred six attorneys to the bar rather than impose monetary sanctions: "the Sanctioned Attorneys assisted Qualcomm in committing this incredible discovery violation by intentionally hiding or recklessly ignoring relevant documents, ignoring or rejecting numerous warning signs...the Sanctioned Attorneys then used this lack of evidence to repeatedly and forcefully make false statements and arguments to the court and jury." (Mike Frisch)
Tuesday, January 8, 2008
The New York Appellate Division for the First Judicial Department entered an order today imposing discipline against a former Legal Aid Society attorney for the following misconduct:
"... respondent pleaded guilty to unlawful surveillance in the second degree (Penal Law § 250.45), a class E felony. At the plea hearing, he admitted that during the period from approximately May 25, 2004 through September 30, 2004, for his own entertainment, he intentionally used an imaging device to surreptitiously record and review a person dressing or undressing in the offices at the Legal Aid Society when that person had a reasonable expectation of privacy, and without that person's knowledge. Respondent is scheduled to be sentenced on December 3, 2007, to a promised sentence of a conditional discharge, the condition being one year of weekly counseling with proof of continued counseling."
The order struck the attorney from the rolls as a result of the felony conviction. (Mike Frisch)
As a former federal public defender, I was distressed to see charges filed by the Illinois ARDC alleging that a federal public defender accepted a fee in violation of the personnel rules that prohibit outside employment. The attorney was employed as an FPD from 1979 to 2007, a total of 28 years of service. It is further alleged that the fee was not properly escrowed, that the attorney failed to perform the legal services and that he did not promptly return the unearned fee. He is also alleged to have made false statements in the bar investigation. (Mike Frisch)
The United States Supreme Court reversed a decision of the Seventh Circuit holding that a lawyer's representation of a criminal client was constitutionally ineffective because the lawyer had participated in the plea hearing by speaker phone. The court entered a per curiam order: "Our own consideration of the merits of telephone practice...is for another day, and this case turns on the recognition that no clearly established law contrary to the state court's conclusion justifies collateral relief." (Mike Frisch)
Every disciplinary regime invokes the "need to protect the public" as its explanation for doing whatever it wants to do. For example, some argue that probation protects the public in a better manner than suspension because the supervision may assist the lawyer in improving practice skills and prevent future violations. Of course, suspension protects the public completely so long as the lawyer complies with the court's order (which should not be taken for granted). There are two legitimate sides to these and other issues relating to enforcement of ethics rules.
It cannot be subject of debate that, once a lawyer has been found by a disciplinary committee to have converted entrusted funds, a prompt interim suspension best protects the public from future defalcations. The Arkansas Supreme Court recognized the need for such action in a recent case and entered such an order. (Mike Frisch)
Monday, January 7, 2008
An attorney admitted in 1957 was suspended by New York Appellate Division for the First Judicial Department for his lack of cooperation in a series of disciplinary investigations. The attorney is the subject of four complaints from three clients and "has not disputed the allegations in the complaints that he failed to perform the work necessary on the various matters and that he had promised to refund the legal fees." The attorney had claimed a variety of physical problems, but had "provided little documentation in support...While not unmindful of [his] age, we note that he continues to hold himself out as an attorney and has collected fees for legal work he has failed to complete." (Mike Frisch)
A defendant convicted of first degree murder claimed that her trial counsel was ineffective in that, among other things, he had failed to communicate an offer from the prosecution to plead guilty to second degree murder. The trial court found that counsel had failed to advise his client of the offer but that the defendant likely would have rejected it. The Nebraska Supreme Court affirmed both findings and denied postconviction relief: "the defendant must demonstrate a reasonable probability that, but for counsel's deficiency, he or she would have accepted the plea."
Note what appears to be a clear finding of an Rule 1.2 ethical violation in the failure to advise the client of the offer. If the disciplinary counsel investigates, would the lawyer be collaterally estopped from claiming that he did tell the client about the plea deal? (Mike Frisch)
The District of Columbia Board on Professional Responsibility issued a stack of end of the year reports that I am wading through. It appears that the most interesting case is In re Bach, where the board recommends ("Although we have misgivings...")that the lawyer be disbarred for misappropriation. The case involves a lawyer who took fees without court approval for legal work as a conservator. He thus engaged in unauthorized use of entrusted funds. He "admitted that he deliberately paid himself from the Estate funds prematurely, knowing it was a violation of applicable rules" and the board could not find a negligent violation. Under the rule adopted en banc in In re Addams, disbarment must follow as night follows day for intentional or reckless misappropriation.
But, as one of my old law profs used to say, hold the phone. The board does not like the Addams rule. It expresses concern about the "draconian sanction"and "urges that sanctioning [the attorney] with suspension, plus whatever discipline the Probate Court deems appropriate under the circumstances, would more accurately reflect the nature of his misconduct, without suggesting to the public any tolerance of misappropriation."
Further, the attorney is not presently represented by counsel. There is a provision in the D. C. rules that permits the board to appoint counsel, compensated through bar dues, to represent "indigent" lawyers in bar discipline cases. Watch to see if the board appoints counsel in this case (presumably a former board member) to argue its pet issue of lowering standards in misappropriation cases. If they appoint counsel, the fancier the pedigree, the more passionate the hope of overturning Addams. (Mike Frisch)