June 14, 2008
Next Time Ask For Damages In the Amount of $138,542,796
Best line in the story, reported as Sudoku Addicts Halt Drugs Trial, is: "The judge was alerted after some of the jurors were observed writing their notes vertically, rather than horizontally."
Not quite as inspirational as is Nancy's post on the Nevada attorney who made good on his boss's wrong. But inevitable. Look for the University of Chicago Law School to ban sudoku from its classrooms. [Alan Childress]
Local lawyer in Vegas does the right thingThere's a lovely article in the local Las Vegas paper about a lawyer who, after discovering that his boss had stolen $200K from her client trust accounts, repaid each and every client for the theft. (See here.) For my take on it, see here. (Nancy Rapoport)
Ski Thefts, Endangering Crossing Guard Result In Censure
The New York Appellate Division for the Second Judicial Department imposed a public censure of an attorney for a criminal conviction for retail theft from three Vermont ski shops. It appears from the order that the offenses had occurred on three occasions over a three-week period. The attorney had been ordered to pay $2,445 in restitution in the criminal case. As to mitigation, the court found:
...the respondent asks the Court to consider his previously unblemished record, his expressed remorse, his full cooperation with the Grievance Committee, his complete compliance with the conditions of his sentence, his character evidence and his impressive contributions to the community, and the aberrant nature of his misconduct, which did not involve the practice of law. Under the totality of the circumstances, the respondent is publicly censured.
This appears to be a rather lenient disposition for a series of thefts.
In an unrelated matter, the court imposed the same sanction for another case involving a criminal conviction. The court describes the conduct as follows:
On or about June 6, 2006, the respondent admitted before Judge Kluewer that on October 18, 2005, he engaged in disorderly conduct by making it difficult for a crossing guard to perform her duties, attempted to recklessly endanger the crossing guard by interfering with her duties and being rude to her, and harassed the crossing guard by actually striking her with his vehicle, causing her to fall to the ground.
On August 10, 2006, the respondent was sentenced on his plea to one year of probation, with the condition that he undergo anger management therapy.
Underfunded Public Defenders In Several States Say They Cannot Do Their Work
Posted by Alan Childress
An ABC News story yesterday, forwarded to us by Paul Caron (visiting San Diego), highlights the resource problem in many states for public defenders just trying to do their constitutionally-mandated effective assistance of counsel. Similar to a crisis we highlighted in 2006, involving New Orleans' criminal defense system in shards (and a clinical prof jailed for not having the resources to take a case), other states find their PDs taking action at real risk to themselves:
Faced with what they call severe budget shortfalls, several public defender offices across the country say they may soon begin turning away thousands of poor criminal defendants.
Statewide public defenders in Kentucky and Minnesota and local offices in cities such as Atlanta and Miami say budget cuts are forcing them to fire or furlough trial lawyers, leaving the offices unable to handle misdemeanor and, in some instances, serious felony cases.
The cuts leave states scrambling to find a solution to a constitutional dilemma: The Sixth Amendment requires the government to either provide poor defendants with lawyers or release them.
"It is an impending legal crisis in our state," Joseph Lambert, the chief justice of the Kentucky Supreme Court, told ABC News.
The conflicts have prompted at least one lawsuit, brought on Wednesday by several criminal suspects in Atlanta who may temporarily be without lawyers, and could result in some public defenders being held in contempt of court.
The full, detailed story reported by Scott Michels is linked here.
June 13, 2008
Help Wanted: Executive Director for the Georgetown Center for the Study of the Legal Profession
[posted by Bill Henderson]
Here is a terrific opportunity for a lawyer interested in advancing the study of the legal profession.
The Center for the Study of the Legal Profession at Georgetown University Law Center is seeking an Executive Director who will work closely with faculty Co-Directors of the Center on a variety of projects furthering the mission of the Center. That mission is to promote scholarship on the profession that is informed by awareness of the dynamics of modern law practice; to furnish practitioners with broad perspectives on developments in the profession, as well as research from a variety of fields that is relevant to law practice; and to provide students with a sophisticated understanding of the opportunities and challenges of a career in practice. The Center expects its projects increasingly to explore the impact of globalization on the legal profession.
In collaboration with the Center’s Co-Directors, the Executive Director will design, select, and coordinate research projects on the profession for which the Center provides financial support; plan symposia on research, trends, and developments relating to the profession; devise programs to provide practitioners with the results of research on the profession; arrange for programs, workshops, and speakers on the profession for both faculty and students; work with and advise Law Center faculty and relevant administrators on how to incorporate scholarship and different perspectives on the profession into the curriculum; ensure that the Center’s financial contributions to projects match its available resources; and, as appropriate, explore sources of funding for the Center. Projects may be at the Center’s own initiative or in response to an interest in collaboration that has been expressed by persons or organizations outside the Center.
The position requires a law degree, or advanced degree and experience with research on the legal profession, and at least four years of experience in a law school, legal practice, or organization engaged in research on the legal profession. The Executive Director will need to be able to manage several projects simultaneously, and to interact regularly with practitioners, scholars, and other members of the academic community. Competitive compensation package. Application process will be expedited (ideal start time - mid to late August).
Please address electronic submissions of resumes and letters of interest to: Mitt Regan, Professor of Law, Georgetown University Law Center, 600 New Jersey Avenue, NW, Washington, DC, 20001, firstname.lastname@example.org. Georgetown University Law Center is an Equal Opportunity Employer.
Zealous, Not Unethical
An Arizona hearing officer dismissed charges of ethical misconduct against a criminal defense lawyer who had subpoened the alleged victim's counselling records in a case involving charges of sexual misconduct with a minor. After the court had denied the attorney's motion for disclosure of the records, the attorney ascertained the true name of the counsellor (the previous subpoena had the wrong name), reissued the subpoena in the correct name and moved for reconsideration. The State sought a contempt citation and to preclude the evidence; the trial court denied the motions. The criminal charges were dropped in light of concerns about the victim's credibility.
The hearing officer concluded that: "[the lawyer's] purpose in obtaining the counselling records included legitimate reasons in accordance with his duties as the client's criminal defense advocate, such as building a defense in the case, impeaching the victim or others on her behalf, possibly challenging the expert's conclusions in the case and similar legitimate reasons." Notably, the trial judge "implicitly rejected each and every assertion levied therein - including the assertion that Respondent's conduct presented a substantial likelihood that ethical rules were violated." (Mike Frisch)
Disbarment For Misappropriation
The Ohio Supreme Court rejected a proposed indefinite suspension and imposed permanent disbarment in a case involving misconduct in three matters. The court's web page summarizes the misconduct as follows:
in one case, Mason mishandled and misappropriated funds from a $13,750 settlement he received on behalf of a personal injury client. The Court found that Mason not only deducted from the settlement proceeds $4,583 to which he was entitled as a contingent fee, but also paid from the client’s proceeds a $2,025 fee to another attorney that should have come from Mason’s fee. The court also found that Mason failed to pay a $2,800 medical bill from the settlement proceeds despite telling the client he had done so, delayed for eight months in sending the client any portion of the settlement, and ultimately sent her a check for $4,091 that was returned unpaid because it was written on a non-existent bank account. The client never recovered any of the settlement proceeds, and had her wages garnished to pay the medical bill that Mason falsely stated he had paid on her behalf.
In two other instances, the Court found that Mason accepted fee advances from clients facing criminal charges but then abandoned their cases and failed to respond to their attempts to contact him without any notice and without returning their unearned fees. In one case, a trial court issued an arrest warrant for Mason’s client when neither he nor Mason appeared for a pretrial hearing about which the client had never been informed.
Misappropriation was found to require disbarment, rather than suspension. (Mike Frisch)
Anger And Zeal Leads To Suspension
An attorney, during the course of representing a client charged with assault, intentionally misrepresented his identity to a person who he believed to be the alleged assault victim. The attorney claimed to be a police officer, and left a voice mail message that advised the victim of an outstanding arrest warrant. The recipient called the prosecutor, who advised that there was no such warrant.
The lawyer was charged with and convicted of impersonating a police officer and intimidating a witness. The conviction was reversed on speedy trial grounds. Disciplinary charges were then brought. The trial judge found that the misconduct was motivated, in part, by anger at the prosecutor who had claimed (without evidentiary support) that the lawyer had altered a videotape that was potential evidence in the assault case. The trial court further found that the conduct was not motivated by greed or a win-at-all-costs mentality. The Maryland Court of Appeals imposed a six-month suspension. Bar Counsel had sought disbarment. (Mike Frisch)
Neglect And Related Misconduct Merits Suspension
The Nebraska Supreme Court imposed a 30 day suspension of an attorney who had been retained to help an animal welfare society seek nonprofit corporation status. The attorney had failed to complete the matter, communicate with the client and return the unearned fees. The referee concluded that he was "an unfortunate example of an inexperienced solo practicioner entering into a project and representation which was beyond his legal experience and training" who did not get help from a more experienced lawyer. The court rejected the referee's proposed sanction of public censure. (Mike Frisch)
June 12, 2008
Misplaced Trust Or Knowing Misconduct?
The Supreme Court of Washington imposed the sanction of a three month suspension for escrow account violations and failure to properly supervise a non-lawyer assistant who had embezzled entrusted funds. The court concluded that suspension was appropriate for violations that it characterized as "knowing" misconduct. The court majority provides an extensive discussion of the application of its sanction standards. The result drew a sharp dissent from Justice Sanders, who was of the view that the lawyer was the victim, rather than the perpetrator, of the misconduct of the employee:
George Trejo allowed a trusted employee to access his client trust account. This employee repaid Trejo's trust by embezzling from him. Because of this theft, his client trust account ran a deficit and incurred an audit by the Washington State Bar Association. But today the majority blames the victim of the theft and redoubles Trejo's loss. His suspension is the result of his lack of distrust resulting in minor accounting errors. However, Trejo should not be punished so severely for his naiveté that led to his victimization as "[t]hey that know no evil will suspect none." Since Trejo is the only victim of this theft, I must dissent...
Trejo negligently violated his ethical duties; however his actions did not harm his clients, unlike the harm this court causes thousands of clients annually. We might be justified in suspending Trejo's accounting license, but admonition is the appropriate sanction for violating his ethical duties as a lawyer. I refuse to join the majority's suspension of Trejo's license when his biggest flaw was misplaced trust in an employee who subsequently stole his money.
Censure Too Harsh
The Nevada Supreme Court rejected a proposed censure of a Las Vegas municipal judge as unduly harsh and directed that the judge write a letter of apology and attend (at his own expense) a class in judicial ethics. The misconduct involved a defendant who was unable to appear for a court proceeding and sent his girlfriend in his stead. The following colloquy took place:
THE CLERK: The City of Las Vegas Municipal Court is now in session. The Honorable George Assad presiding. Please be seated.
THE COURT: City versus Joshua Madera. Okay. Where is Joshua?
UNIDENTIFIED SPEAKER: He’s actually—today he started his first day at work. That’s why he’s not here today. He’s requesting if he can just have 30 days to make that payment in full.
THE COURT: Well, the problem is he threatened someone with bodily harm, essentially.
UNIDENTIFIED SPEAKER: When was this, your Honor?
THE COURT: It was Friday. He threatened her with bodily harm, one of the court clerks.
UNIDENTIFIED SPEAKER: I—
THE COURT: So unless you want to get him down here real quick, we’re going to have to lock you up until he gets here. I think he knew that, so that’s why he sent you here in his place.
UNIDENTIFIED SPEAKER: I—I talked to the clerk on Friday, but I—
THE COURT: Who did you talk to?
UNIDENTIFIED SPEAKER: Some lady. She said that I could come into court for him. Didn’t—she didn’t say anything about him threatening a clerk.
THE COURT: And you don’t know who you talked to?
UNIDENTIFIED SPEAKER: No. I don’t recall, your Honor. You know what? Maybe I wrote it on the paper. I’ve got Debbie, extension [ ].
THE COURT: Well Debbie’s here and she says he didn’t talk to her. So—
UNIDENTIFIED SPEAKER: Okay. Maybe he (indiscernible)—
THE COURT: I mean, there might be another Debbie.
UNIDENTIFIED SPEAKER: I have no idea.
THE COURT: Is there another Debbie down here?
THE CLERK: (Indiscernible).
THE COURT: All right.
UNIDENTIFIED SPEAKER: I have no idea.
THE COURT: All right. Well, you’re going to have to go with my marshal in the back and make a phone call.
UNIDENTIFIED SPEAKER: Well—
THE COURT: Tell him you’re going to jail if he doesn’t get his butt down here—
UNIDENTIFIED SPEAKER: Okay.
THE COURT: —real fast.
Chrzanowski [the girlfriend and unidentified speaker] followed the marshal, Raul Saavedra, to a back room, which included a desk and a phone, some seating, and two holding cells. Chrzanowski called Madera, who could not come at that time. Saavedra handcuffed Chrzanowski and placed her in the women’s holding cell. Testimony at the Commission hearing indicated that this back room was quite busy during hearings, as it was used for telephone calls by defendants and others, for plea negotiations, and for arranging alternative sentencing such as work programs and house arrest. The record further reflects that the courtroom itself was very busy, even while the court session was taking place.
The court found that the testimony of an expert on behalf of the judge was properly rejected:
Here, Professor Stempel’s affidavit, which was attached to Judge Assad’s prehearing motion and sets forth his proposed testimony, purported to evaluate the credibility of witnesses that had yet to testify (although they had given statements during the Commission’s investigation); determined based on the March 31, 2003, court session’s audiotape that Chrzanowski could not have been handcuffed in court because no “click” could be heard on the tape; weighed “evidence” that had not yet been admitted; and discussed issues that were irrelevant to those properly before the Commission, such as whether Judge Assad would have had jurisdiction to hold Chrzanowski in contempt, whether she was engaged in the unauthorized practice of law by appearing on Madera’s behalf, and the dismissal of Chrzanowski’s civil lawsuit. Credibility determinations and weighing the evidence are tasks reserved to the Commission, and expert testimony on these issues would not have assisted the Commission to understand the evidence or resolve a disputed fact. Also, as noted above, much of the affidavit concerned matters that were irrelevant to the issues before the Commission, and thus it was not admissible. Accordingly, we conclude that the Commission did not abuse its discretion in refusing to admit Professor Stempel’s proposed expert testimony.
Suspension For Misconduct In Adoption Case
In a lengthy opinion, the Florida Supreme Court today rejected a referee's public censure with probation and suspended the lawyer for three years. The misconduct involved a series of false representations to a tribunal in connection with an adoption. The lawyer was president of the Foundation for Children, Inc. (which operated an adoption agency) and had presented a significant amount of character evidence. The misconduct was deemed quite serious: the "trial court relied on the accuracy of the attorney's ex parte factual, substantive, and material representations in rendering its decision as to the familial structure of a vulnerable, defenseless child." The lawyer had taken a child from his maternal grandparents and arranged the adoption through false representation to a tribunal. The grandparents sought to assert rights to the child, but were not financially able to secure legal help. The adopting parents had their rights challenged and had sued the lawyer for malpractice.
The court noted that the case presented a "rare circumstance where this Court's responsibility to the public compels us to depart from both the referee's recommended disposition and the Bar's requested discipline." The Bar had sought a one-year suspension.
A dissent from Chief Justice Lewis makes an impassioned and persuasive argument for disbarment: "It is an affront to the disciplinary system and an affront to the public that these deliberate and blatant misdeeds of the theft and sale of a child have not resulted in disbarment." The lawyer had wreaked harm on the grandparents, the birth mother, the biological father, her own clients and the child for "a fist full of dirty dollars." The dissent then strikes an unusual note:"I have failed the people of Florida due to my inability to help my good friends and colleagues fully understand the enormity of this wrong."
Although the dissent is lengthy, it is worth a read if you are interested in a fundamental regulatory issue. Jurisdictions will disbar for misappropriation but not necessarily for serious forms of dishonesty. The point of the dissent is that the proven misconduct (described in detail) should be regarded every bit as seriously as theft of client funds and should result in the same sanction.
Also of interest is the differing analysis of the purported mitigating factors by the majority and dissenting opinions. (Mike Frisch)
On Being a Happy and Successful Lawyer
[posted by Bill Henderson]
A must read: the 2008 commencement address at Case Law by Stephen C. Ellis, managing partner at Tucker, Ellis & West. Mr. Ellis sees the big picture. (HT: David Maister's blog, Passion, People and Principles, and IU alum Ted Waggoner, who sent me the link).
Graduates of Concord, First Online Law School, Admitted to US Supreme Court
[posted by Bill Henderson]
As I was catching up on my reading, I ran across an interesting story on four Concord Law grads who were recently admitted to the U.S. Supreme Court. See Tony Mauro, "Online Law School Grads Defies Expectations," Legal Times (May 6, 2008). It is noteworthy because Concord is a 100% distance-based law school which was founded in 1998; it was subsequently acquired by Kaplan, which has long specialized in test preparation.
Although Concord is ineligible for ABA accreditation (because the accreditation standards require, among other things, a face-to-face classroom experience), its graduates can sit for the California Bar. Of course, once admitted to the California Bar, Concord graduates can practice in federal court, including the US Supreme Court, according the same rules as any ABA-accredited law school grad. The irony here, however, is that Justice Ginsberg gave a speech back in 1999 that was openly critical of "distance learning" at the newly opened Concord, reasoning that educational process "inevitably loses something vital when students learn in isolation." In March, Ginsberg looked on as four Concord Law graduates were sworn in to the Supreme Court Bar (NB: to be admitted to SCOTUS, an attorney must (a) be a member of the bar in good standing for three years, and (b) sponsored by two attorneys already admitted to the Court).
The story reports that Ginberg's critical comments actually helped build momentum for the school. According to Concord Dean, Barry Currier, the school enrolls a large number of nontraditional students and stay-at-home parents who cannot afford either time or geographic relocation to attend a traditional law school. According to a related story, 40% of Concord students (total enrollment now at 1,500) have at least one master's degree (including MDs, MBAs, and PhDs), with many pursuing a legal degree as a second career or to enhance their own career.
The four Concord Law graduates certainly appear to be a diverse and impressive group that could end up in a brochure of virtually any ABA-accredited school:
- A former businessman with a general law practice who also handles domestic violence cases pro bono;
- A former dentist who currently serves as a consultant on risk management and forensic dentistry;
- A computer consultant who is now promoting online education and multijurisdictional practice of law; and
- A retired telecommunications manager who now takes court-appointed juvenile dependency cases.
According to Dean Currier, "Having our graduates sworn in at the Supreme Court symbolizes the fact that we have attracted people to our school who are highly qualified and passionate about becoming lawyers." Arguably, this is a "but for" group: But for Concord's distance learning program, these professionals would not be lawyers. I would love to hear a renewed argument against distance learning.
Dead Man's Statute Not Applied In Bar Discipline Matters
The New York Court of Appeals today held that the Dead Man's Statute does not preclude the admission of evidence in a bar disciplinary proceeding, reversing the decision of the First Judicial Department and remanding for further proceedings. The First Department had rejected a referee's recommendation of a public censure and imposed a two-year suspension.
The case involves charges of mishandling escrowed funds from the sale of real estate. The lawyer, who has no prior discipline, had represented a husband and wife. He testified that he never sent them bills, but sought payment at the conclusion of discrete matters. The husband died and the wife became ill. The lawyer arranged the sale of an apartment building that was the wife's principal asset. He testified in the bar proceeding that he had her oral authority to treat $200,000 held in escrow as his fee. Later, her daughters questioned his handling of the escrowed funds. The court ruled that the statute applies to probate matters and did not operate to exclude the evidence of the wife's statements (the referee had found the accused attorney credible in this respect) in the bar proceeding. (Mike Frisch)
June 11, 2008
File Retention Not Malpractice
The Connecticut Appellate Court affirmed the dismissal of a legal malpractice claim brought by a client who retained the attorney to represent him in a habeas corpus claim that had been filed pro se. After receiving thirteen boxes of materials, the "relationship deteriorated" and the lawyer was granted permission to withdraw. The client informed the lawyer that he wished the boxes be provided to his new attorney, but the representation by new counsel was not confirmed. When the malpractice suit was filed, the boxes were transferred to the attorneys defending the suit.
When the appearence of new counsel was confirmed, the attorney instructed his malpractice lawyers to transfer the boxes. Copies of the contents were made prior to the transfer. The client then filed a 44 count complaint "all in connection with the defendant's possession of the boxes" during the period prior to the transfer to new counsel. The complaint alleged, among other things, theft, larceny, conversion, civil conspiracy and deprivation of civil rights. The court found that the trial court had properly granted summary judgment on the claims. (Mike Frisch)
Depression Played A Role In Misconduct
The New York Appellate Division for the Fourth Judicial Department censured an attorney for failure to effect withdrawal from representation after discharge and thereafter having continuing contact with the former client that led to settlement of the underlying case. The attorney also had failed to cooperate with the disciplinary investigation. The court rejected the conclusion below that depression was not a cause of the misconduct. Health problems of the attorney's law partner also were considered in determining the discipline.
The link takes you to the court's web page. The case is Matter of Strunk. (Mike Frisch)
Parental Discipline Not Criminal
Not a legal profession case, but of possible interest to the parents among us, is a decision today from the Indiana Supreme Court. The court reversed a criminal conviction for battery on a child. The defendant was the child's mother. He had stolen her clothes, taken the clothes to school, and lied when confronted. After taking two days to "ponder her options" they had a long conversation. When the child repeated the lies, mother had him remove his pants and "proceeded to strike him five to seven times with either a belt or an extension cord." Some blows landed on his arm and thigh as well as his buttocks. He went to the school nurse, who contacted protective services. The mother was arrested, charged and convicted at a bench trial.
The court held that the parental privilege defense is a "complete defense" that the State did not disprove beyond a reasonable doubt. The court considered the fact that the child was eleven years old and not a "first offender." The punishment was not "unnecessarily degrading" or disproportionate to the offense. (Mike Frisch)
Secretary Takes Deposition, Lawyer Gets Reprimand
The web page of the Virginia State Bar reports the following agreed disposition:
On May 28, 2008, the Virginia State Bar Eighth District Committee imposed a public reprimand on Marcus Noah Perdue for violating the disciplinary rule that governs candor toward a tribunal. Mr. Perdue did not promptly reveal to a court that, when he was unavailable for scheduled depositions in a divorce case, his secretary improperly took the depositions, notarized them, and filed them with the court. This was an agreed disposition of a misconduct case against Mr. Perdue.
The link to the reprimand is not yet posted. (Mike Frisch)
June 10, 2008
More From Arizona
An Arizona attorney has consented to discipline consisting of a censure and one year of probation for attempting to kiss and inappropriately touching a client. After the client terminated his services, he sent an email to his law office staff referring to her as an "idiot" and a "goof-ball." When the client then sent a letter and email documenting her reasons for terminating him, he responded that the "accusations are untrue, absurd, and bordering on the insane." She then filed a bar complaint.
The hearing officer's report recommending adoption of the consent proposal is now set for review by the Disciplinary Commission and, ultimately, the Arizona Supreme Court. (Mike Frisch)