July 16, 2008
McMillian on Lawyer Depression and Media Depictions
Posted by Alan Childress
Attorney depression and related mental health issues are a recurring topic on this blog and others (e.g., Mike's June 20 post on a Pennsylvania bar matter, and his this morning on a Missouri case involving bipolar disorder). One website is devoted to the specific topic: it is called Lawyerswithdepression.com, and is edited by Dan Lukasik. Depression is the subject of a recent California Bar Journal article, as we noted here. David Giacalone at f/k/a has also written on the subject in helpful detail and poetically, and see also Legal Underground's important 2005 post here (guest penned by Ray Ward). Both Ray and David link plenty of books and articles, and the comments and blog trackbacks following Ray's post are extensive.
The subject intersects frequently with attorney images in popular culture. Jeff wrote on the subject via posts about Michael Clayton and law firm associates. Bill Henderson, along with David Zaring, wrote a review essay on two lawyer novels depicting associates and their supposed unhappiness, but Bill also points to empirical studies worth considering before jumping to the conclusion that lawyering equals unhappiness.
Now Lance McMillian (Atlanta's John Marshall L.S.) has published in SSRN Law & Soc'y: The Legal Profession his new paper, "Tortured Souls: Unhappy Lawyers Viewed Through the Medium of Film." He focuses on such 'tortured' characters as Ned Racine, Frank Galvin, Michael Clayton, and even Atticus Finch. The abstract is below the fold.
Lance's abstract is:
Lawyers are unhappy. So bad is the situation that scholars have even asked, "Can one be a lawyer and a happy human being at the same time?" Culturally, the existence of unhappy lawyers is not an unknown phenomenon. Case in point: the portrayal of tortured attorneys through the medium of film. This Article focuses on nine such lawyers: Ned Racine, Michael Clayton, Frank Galvin, Reggie Love, Paul Biegler, Sam Bowden, Arthur Kirkland, Jan Schlichtmann, and Atticus Finch. Similarities between lawyers in reel life and real life quickly emerge.
The legal profession should pay attention to these common struggles. Attorneys in film have much to teach. Their most lasting lessons point the way for the modern lawyer to reclaim a satisfying and fulfilling legal career. Through the movies, lawyers old and new can freshly discover the secrets for lasting success: doing what one loves, devoting oneself to a noble end, and refusing to compromise ethically. That great cinema contains enduring truths and insights should not be surprising. The best films help us to learn something more about ourselves. Learning without action, however, soon melts away. When trapped in unhappiness, it is the individual who must act and make choices consistent with that person's core values. Movies can rekindle our ideals. But only we can make those ideals a reality.
A Very Nice Thing To Say
Posted by Alan Childress
After our LPB post on the near-execution of Charles Hood by Texas -- and Andy Perlman's free-ranging and incisive post on the subject at Legal Ethics Forum -- the blog Capital Defense Weekly called these posts "must read pieces" and added, "as someone who is petrified of effing up and losing the bar card, these sites are tops of my RSS feeds." Andy's post is nicely entitled, "The Hood Case: Unsurprisingly Disturbing," and includes many links to bizarre and sad aspects of a system that, among other things, measures "how long a public defender can sleep through a trial before the proceedings are considered to be unconstitutional." Andy adds, "(You have to sleep through quite a bit.)"
Bipolar Condition Causes Misappropriation, Disbarment Not Imposed
In an important decision involving the sanction for misappropriation caused by bipolar disorder that is presently controlled by medication, a 4-3 decision of the Missouri Supreme Court held that an indefinite suspension with right to apply after three years, rather than disbarment, was the appropriate disposition. The dissenters would disbar.
The attorney had been symptom free and practiced honorably from1981 to 1998. During a vacation in Europe, he began drinking and fell into a spiral that last until 2003. The thefts occurred during that period of time. Over the four year period, the attorney kept clear records of the amounts he had taken. He thereafter voluntarily repaid the funds and self-reported the misconduct. Since 2003, he is again in treatment and apparently restored to his pre-lapse condition. He had sought a fully stayed on conditions involving monitoring of his condition.
The court majority concluded:
Even though this case is unique in the quantity and type of mitigation present, this Court must reject Mr. Belz's argument that a stayed suspension with probation is proper. As this Court and many others have recognized, misappropriation of client funds presents a paramount risk to the integrity of the legal profession. Our profession relies intrinsically on the trust that clients are willing to place in their lawyers, and few acts of misconduct have the capacity to erode that trust more quickly and thoroughly than the conversion of a client's funds to one's own use. Even when such conduct is recorded properly and undertaken in a manic state, as it was here, this Court condemns this conduct in the strongest possible terms. Mr. Belz acted with a dishonest and selfish motive in taking his clients' funds, he did so multiple times, and he had substantial experience with the law. A stayed suspension is simply not appropriate for this type of misconduct.
In this case, an unusual array of compelling mitigating factors has collided with extreme and gross misconduct unbecoming of a member of the bar. Under the unique facts of this case, this Court concludes that the appropriate sanction is to suspend Mr. Belz from the practice of law indefinitely without leave to apply for reinstatement for three years. In addition to the conditions for reinstatement set forth in Rule 5.28, Mr. Belz must establish that he has continued to receive effective treatment for his bipolar disorder through the duration of his suspension and, as a part of any application for reinstatement, that he will continue such treatment into the future.
The dissent in full:
"Hard cases make bad law" is a familiar adage that seems to fit this case. The adage appears in a dissent by Justice Oliver Wendell Holmes, Jr. "Great cases, like hard cases, make bad law," Holmes said. "For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend."(FN1)
I have long believed that disbarment is the penalty for stealing from clients. But this is a hard case because the respondent Mr. Belz, as the principal opinion ably notes, appears to have had a long and otherwise honorable career as lawyer and as a church and civic leader, as well as to have overcome, for the most part, a mental illness that he has endured through much of his life.
Moreover, when it comes to assessing punishments, I have learned over time that hard-and-fast rules often produce injustice and social dysfunction. Nevertheless, stealing is stealing. If there are certain immutable rules, then surely this is one: Lawyers may not steal from their clients. Not even borrowing without permission with the intention of repaying – it is still stealing. A license to practice law is not a license to steal. We should not give cynics, who may believe otherwise, any support for their wrong-headed view – regardless of mitigating circumstances. There are in fact no mitigating circumstances: no medical or psychiatric excuse mitigates this behavior. Lawyers must be held to this standard of honesty despite their individual circumstances.
Stealing from clients should result in disbarment. This is a well-settled principle that we should not bend. I respectfully dissent.
Reinstatement will be conditioned on proof of ongoing treatment compliance and symptom-free behavior. (Mike Frisch)
Being on Both Sides of a Litigation Not Entirely Without Precedent
Posted by Alan Childress
As for my earlier assertion that having an interest in both sides of an appeal is entirely without precedent, I retract somewhat. Consider Chico Marx cross-examining himself in Duck Soup, which
required him to ask the questions then quickly sit down to answer himself. (Or was it Groucho?)
The movie has a broader theme of straddling the fence, perhaps not lost on the attorney in my prior post, but contextualized here as to the larger war at issue for the nation of Freedonia:
Groucho : Awfully decent of you to drop in today. Do you realize our army is facing disastrous defeat? What do you intend to do about it?
Chico : I’ve done it already.
Groucho : You’ve done what?
Chico : I’ve changed to the other side.
Groucho : So you’re on the other side, eh? Well, what are you doing over here?
Chico : Well, the food is better over here.
All as quoted at this clown ministry site (and here), which also notes that the town of Fredonia, NY, had "complained about the use of its name with an additional 'e'. The Marx Brothers’ response was: 'Change the name of your town, it’s hurting our picture.' " (Quoting from imdb.) Meanwhile: Groucho: "I’ll see my lawyer about this as soon as he graduates from law school." Finally, as to sanction for such a fiduciary breach:
Groucho : Gentlemen, Chicolini here may talk like an idiot, and look like an idiot, but don’t let that fool you: he really is an idiot. I implore you, send him back to his father and brothers, who are waiting for him with open arms in the penitentiary. I suggest that we give him ten years in Leavenworth, or eleven years in Twelveworth.
Chico : I’ll tell you what I’ll do: I’ll take five and ten in Woolworth.
The Importance of Proofreading Appendices
Posted by Alan Childress
Quoting West's "Headnote of the Day" for July 9, Ray Ward and a commenter at the (new) legal writer blog observe that slapping on appendices to a filing is often hurried and harried -- yet may cause dire consequences via the old-fashioned kind of metadata: scrawled marginal notes. The headnote:
Conduct of Department of Justice attorney in scribbling in the margin of district judge’s opinion, submitted as appendix to Department’s brief, the word “WRONG” beside several findings of district judge was “indecorous and unprofessional conduct.” Allen v. Seidman, 881 F.2d 375 (1989).
Ray's "guess is that the attorney never intended for anyone outside the office to see those marginal notes. He or she probably wrote them while reviewing the district judge’s opinion, then put the opinion in the file." Misproofreading at filing ensued. Me, I'm not so sure. The lawyer may have thought this to be pointed and aggressive adversarialositude. Still, it is a reminder to thoughtfully review appendices and not just the brief before filing. And yes, Ray, I realize I split an infinitive just there.
Moral: Your appendix is a vestigial organ with no known function but it will kill you if it goes awry. (The appendix does apparently feature, however, in the debate over evolution "versus" creation.)
I still think the good-advice headnote to beat, as "KeyCite 45k - Reinstatement," is:
Disbarred attorney who threatens to execute members of [Louisiana] Supreme Court and states that he has been told by two bishops that neither they nor the church would say that it would be morally wrong for him to summarily execute the Supreme Court is not entitled to reinstatement.
A Massachusetts attorney was subject to an agreed-upon public reprimand for charging a clearly excessive fee in a divorce matter. Initially, the matter appeared to be uncontested and the client was charged a $2,500 non-refundable flat fee. When it appeared that it would become contested, the attorney advised the client that he would handle the matter for a $12,500 flat fee. The client paid the full amount.
Shortly thereafter, it became clear that the case would proceed on an uncontested basis. The client hired new counsel and sought an accounting and refund. The lawyer responded with an additional bill of over $4,000, charging $300 per hour for simple administrative tasks. He also did not provide the client file to new counsel, violating ethical rules governing withdrawal from representation. (Mike Frisch)
The Definition of Chutzpah or I've-Seen-It-All-Now: Being On Both Sides of Appeal. Cal Court Calls It A Disregard of Duties "Without Precedent."
Posted by Alan Childress
If it were a Hollywood script, I would laugh at its utter incredibility: only Hollywood would unblinkingly make an attorney have a litigation interest in both sides of the appeal (and treat it as clever lawyering). But it happened, yes in California, and the court there called it a disregard of a client's fiduciary duties that is "without precedent." It certainly is, to my knowledge, and it as twistedly brilliant and stunningly nervy as it is stupid and in the "what were they thinking?" box. [Thanks to appellate attorney Greg May for letting us know and pointing us to his (detailed and excellent) post on The California Blog of Appeal.] My simplified but accurate version is this, re attorney Anthony Pagkas:
Civil defendant-client loses suit due to default judgment from Lawyer's alleged lack of diligence. Client then sues Lawyer for malpractice and also appeals the default. Lawyer then buys out the plaintiff's interest on appeal (gets an assignment of the interest from the prior plaintiff, for some "undisclosed consideration"). That's right: buys into the other side of the appeal and, now represented as a litigant by another attorney in his firm, owns the default judgment if it is upheld. On the other side from his barely-former client, in the appeal!
Brilliant: if Lawyer loses "his" appeal, then there are no malpractice damages and no causation. If he wins, he collects a $730,000 default judgment from the former client.
Stupid: this requires Lawyer to move the appeals court to substitute him as "respondent" in his former client's appeal.
Sort of predictable: ”Finding that the proposed substitution violates multiple rules of Professional Conduct as well as the Business and Professions Code, we will deny the motion.” Well, yeah. The court's stated astonishment to follow in explaining the denial and imposing sanctions is quoted by May, and its full opinion here as well, issued yesterday. Suffice it to say that "if the substitution were allowed, it is conceivable that Pagkas could prevail in both the malpractice action and in this appeal, leaving him with huge windfall at the expense of his former client. Pagkas’s disregard for his ongoing fiduciary duties to his former client in favor of his own personal gain is without precedent." (Footnote omitted.)
How did Lawyer ever think he would get away with this? The sanctions are merely $5260, but I am sure there is more to come. The case is Styles v. Mumbert, civil H029767 (6th Dist. July 15, 2008).
UPDATE: Not entirely without precedent, it has since occurred to me.
July 15, 2008
Need Your Help: Advice For A NY Bar Applicant With A Shoplifting Arrest/Expungement
Posted by Alan Childress
Calling Mike Frisch, John Steele, Brad Wendel, and other editors or readers who have experience in bar admission matters. Here is an email I received from someone I will call Rose Marie, just because I like the name and the character on the Dick Van Dyke Show. She wants our thoughts on her C&F prospects.
I stumbled on a couple of stories on your blog about bar applicants with "prior bad acts," and I wonder if you could give me some pointers. I just graduated law school and am writing for the NY bar this month. Three years ago (before law school started), when I was living in [Fredonia], I was stupid enough to shoplift in a department store and got caught with $20 worth of merchandise. I got into a first-time offender diversion program, completed it, and the charges were withdrawn. I got everything expunged from the [Fredonian] system. Other than that, nothing indicates bad moral character on my part. Recently, I've become anxious how this may affect my admission despite several good character references from places I worked and volunteered both before and after the charges.
I do plan on giving a full and complete disclosure on the bar application [which in NY follows the exam (the C&F questionnaire, I mean)--Alan]. I want to know if you would recommend counsel/attorney advice before filling out the documents, and if there are other things I may do to show complete rehabilitation.
I would appreciate it if you could either email me directly or post this (anonymously) on your blog. Thank you greatly,...
One piece of advice I wrote RM back, and am sure of, is that right now she should focus on the bar exam itself. Beyond that, my impression is that this is the kind of history that, with full disclosure and remorse [though not laid on too thick as to sound insincere ... maybe "regret" is better], may well be the subject of some follow-up but is unlikely to prevent or seriously delay bar admission, even in NY. Do the experts agree?
From Mike Frisch -- I think this should not be much of a problem with full candor and expressions of "lessons learned." Helpful that it is pre-law school. Would not see any need to retain counsel and think that Alan's "focus on passing" advice is spot on.
UPDATE (from Alan): I emailed John Steele, and he wrote back his advice. Speaking to it as a hypothetical with only the information above, John writes: "I definitely would go to the APRL site, look for NY lawyers, and get a consult before filling out any forms."
Hold The Applause
In a case that explores "the intersection between zealous representation and an attorney's obligation of candor to a tribunal," the New Jersey Supreme Court held the the failure of an attorney to disclose an adverse court decision (an unpublished opinion that is not considered precedent) did not violate the prohibition against false statements of fact or law. While the court disapproves of "sharp practices," the carefully worded brief that the lawyer filed was not calculated to mislead the tribunal:
If the Court were to conclude that an attorney has an affirmative duty to advise his adversary or the court of every unpublished adverse ruling against him, a system would be created in which a single adverse ruling would be the death knell to the losing advocates practice. Nor would it advantage the system of justice.
The court reached this result "with some reluctance." The issue related to an unpublished "palimony" decision that the attorney knew about because he was counsel in the case. In that case, the court had ruled that cohabitation was an element of a palimony claim. In the present matter, the attorney's client could not establish cohabitation. After this second (present) case had settled, the adverse decision was published. The other side moved to set aside the settlement on a theory of concealment of a material fact or anticipatory breach. The court here refused to grant such relief, holding that the non-disclosure "was a course of conduct the Court neither applauds nor encourages, but one our rules do not prohibit." The decision of the Appellate Division was reversed. Sanctions against the lawyer's client "cannot be condoned."
A concurrence would find that the lawyer's conduct crossed no ethical line and that he does not deserve to be "publicly castigated." (Mike Frisch)
Fiduciary Breach Not Established
The Wisconsin Supreme Court decided another interesting case today involving liability claims by a client against its former corporate counsel ("Krug"). The court concluded that there was insufficient evidence of a claimed breach of fiduciary duty and an insufficient basis to submit a punitive damages claim against Krug to a jury.
The client ("Berner") manufactures and sells cheese. Krug had served as corporation counsel since the 1980s. Dairy Source ("a cheese brokerage and distribution company") was involved in state and federal suits with Berner after a Berner employee took "Berner's full customer list, as well as... catalogue of recipes, pricing and formulas for its processed cheese division" and brought the information to Dairy Source. By coincidence, the disgruntled employee's spouse owned Dairy Source. The information was stored in a Dairy Source office.
Krug advised Berner of options that included self-help, which Berner's owners exercised at a time when they knew the Dairy Source owner and their former employee were in Las Vegas. The Berner people removed 33 boxes of documents but sued in replevin (through other counsel) when they did not get all that they had sought. The replevin action was dropped but replaced by a federal court suit that led to counterclaims against Berner. Berner had independent counsel in the litigation, although Krug "maintained his role as corporation counsel." He advised (unwisely, it turned out) Berner to decline a $300,000 payment from Dairy Source to settle the claims.
Krug was deposed twice and then was considered a likely party defendant. He was concerned that insurance would not cover claims against him. He sought indemnification from Berner but the litigation was settled and Krug was released from further liability. Berner sought a contribution to the settlement from Krug, but he declined to contribute. Berner ended up paying $1.35 million to Dairy Source. When litigation counsel sued Berner for legal fees, Berner counterclaimed for malpractice and brought Krug in as a third-party defendant alleging malpractice and breach of fiduciary duty. Those claims were dismissed but the dismissal was reversed on appeal. On remand, Berner partially prevailed on its malpractice claim against Krug, but had the fiduciary claim dismissed. The court of appeals affirmed and Berner sought review.
Clear enough? Berner's expert (Peter Rofes of Marquette, author of Ethics in Law School: The Confusion Persists, which I have used for years and dearly love) opined that there was a conflict between Krug and Berner and that the attorney's conduct fell below the required standard of care. The court found insufficient evidence of a breach of fiduciary duty as a matter of law:
...Brennan, not Krug, represented Berner in the litigation with Dairy Source. Berner does not dispute that its attorneys at Brennan were engaged with Dairy Source representatives in drafting the settlement document. Moreover, the admissions by Ed and Cheryl Kneubuehl belie Berner's claim that, because the settlement document releases Krug from all claims, the settlement was the product of undue influence. When asked whether Krug had any input into the settlement amount, Ed Kneubuehl testified that Krug had not. Cheryl Kneubuehl also testified that she did not recall Krug having any input in the settlement.
Therefore, although the settlement document may have conferred a benefit on Krug, there is no evidence that releasing Krug came at a cost to Berner, and thereby affected the parties reciprocally. Furthermore, although it is possible that some finite value could be attributed to the release of Krug, Berner has not presented any evidence to show what that value may be. For example, Berner has not presented any evidence that the cost of its settlement was increased due to Krug's release. Berner instead alleges that the full cost of the settlement agreement, $1.35 million, constitutes its damages for releasing Krug. No credible evidence supports Berner's claim in this regard.
Berner also has contended that it is entitled to a presumption that the settlement was the product of undue influence. The party seeking the benefit of a presumption carries the burden of establishing that presumption. Because the settlement was not a transaction between Berner and Krug, Berner has failed in its proof that it is entitled to the presumption it seeks. Therefore, the burden remained with Berner to show that Krug's inclusion in the settlement was a breach of Krug's fiduciary duty that caused Berner damages. (citations omitted)
A concurring opinion reaches the same result but considers the majority reasoning an "erroneous interpretation of what constitutes a [business] transaction [with a client]" that has "implications for future attorney discipline cases." The concurrence notes:
Krug appears to have entered a transaction, which was also entered by Berner. Both Krug and Berner signed the settlement agreement. Although the settlement agreement was not between Krug and Berner, Krug entered the transaction with Berner. In effect, the majority sub silencio alters the text of this attorney discipline rule and appears to limit the prohibition to only those situations where the transaction is between the attorney and client.
The significance of the majority's misstep is that it narrows the application of SCR 20:1.8(a). The word "between" means that two parties are involved whereas the word "with" encompasses an unlimited number of parties.
By altering the text of the rule, the majority appears to apply this conflicts of interest prohibition only to situations where there is a transaction between a lawyer and a client. The result of such a narrow application is that it may leave clients unprotected and lawyers unregulated in situations where multiple parties are involved and actual conflicts of interest exist.
All this because litigation counsel sued for unpaid fees. (Mike Frisch)
Jack Swarbrick, Lawyer, as Notre Dame's Athletic Director
Posted by Jeff Lipshaw
The sports media all over the place is reporting that Jack Swarbrick, Stanford Law '80, a partner at Baker & Daniels in Indianapolis, and a good friend, is about to be named the new athletic director at the University of Notre Dame.
I want to express, as a loyal son of Michigan, my deep disappointment that Notre Dame has managed to make such a good choice. Nevertheless, I am thrilled for Jack (assuming it's true), and though it really grinds my gears to say this, he will be a classy leader to a classy program.
Glowing In the Dark
In a matter involving agreed-upon discipline, the Wisconsin Supreme Court today accepted the joint recommendation of a 60-day suspension for misconduct that appears to merit far harsher discipline. The attorney had been retained to represent the plaintiff in an auto accident case. Thereafter, the client died "from circumstances unrelated to the automobile accident." The attorney prepared and filed documents for a special probate proceeding with the widow as proposed special administrator.
The county child support agency filed claims for unpaid child support obligations slightly more than $126,000. The lawyer settled the accident case for $100,000 and falsely advised the probate court that the claim had been dismissed as worthless. He did not advise the widow of her conflicting duties as an individual and as estate representative. The widow received her settlement share of $57,199.26. The lawyer now "agree[s] that some portion of the $100,000 settlement proceeds may have belonged to the Estate..."
Here the court finds that the lawyer did not "personally benefit" from the dishonest conduct but I assume there was a contingency fee since the widow's share was roughly 60% of the proceeds. Also there were "six glowing letters of support" that the referee who approved the stipulated discipline found "give insight into a lawyer who has done much with his education and talents." Such as fraud on the child support authorities and on a tribunal. Not a glowing endorsement of agreed-upon discipline, in my view. (Mike Frisch)
The Mortgage Mess and Conflict of Interest
[Posted by Bill Henderson]
Looking for a primer on the Fannie Mae / Freddie Mac mortgage mess? Over at Econbrower, UCSD economist James Hamilton has an excellent detailed post that lays out the problem. In a nutshell, it comes down to market believing that Freddie and Fannie mortgage-backed securities were riskless because the government would never let them fail. All that extra cash, available at artificially low rate for consumers, subsequently ran up the price of housing to unsustainable levels. Here is Hamilton's bottomline:
The overriding concern in dealing with the current mess is that the process of rapid and radical deleveraging would so impede the flow of new credit that the housing price declines, foreclosures, and bankruptcies significantly overshoot the values that we'd expect in a properly functioning credit market. In addition, I would worry about possible serious repercussions of a flight of foreign capital if there is a sudden perception that agency debt entails heavy risks.
The principle of "make those who caused the problem pay" has a lot of visceral appeal. But the principle of "don't impose severe and gratuitous extra costs on those who had no role in causing the problem"-- in other words, don't make the housing depression much more severe just to teach somebody a lesson-- has to be the basis for our policy decisions.
(HT: Tom Smith at the Right Coast.) The poor organizational incentives at Fannie Mae and Freddie Mac remind me a lot of Enron's go-go culture. Unfortunately, this debacle has potentially staggering macroeconomic consequences.
To my mind, the legal analogue to the economist's "moral hazard" problem is conflict of interest; lawyers should be able to spot these issues. The peculiar aspect of the mortgage meltdown is that many Wall Street lawyers had clients that, at least in the short run, were benefiting from the conflict of interest. From this unchecked growth, Fannie and Freddie executives got power, income, and patronage $$ to spend around to their politico friends, and investors got seemingly riskless securities. But there was no vigilant regulator at the table assessing the risk implicitly being assumed by the government and taxpayers. We operate in an adversarial system. If the government lawyer never shows up, that is not the problem of the private sector lawyer.
I would be interested to know, however, how many Wall Street lawyers perceived the mortgage-backed securities market as an eventual Ponzi scheme. Is it a pipe dream to teach lawyers to spot these types of issues? And if they do spot the issue, what should they do with the information?
"The Good Funds Rule"
The South Carolina Supreme Court suspended an attorney for 30 days for misconduct that included a failure to insure that funds deposited in escrow were properly credited prior to writing checks. As a result, several checks were returned for insufficient funds. The attorney acknowledged that he was aware of the "good funds rule" and the need to verify availability of funds prior to disbursement. He also admitted that he failed to properly supervise a staff member who had taken funds. He filed criminal charges against the staffer and had replaced the missing funds. (Mike Frisch)
July 14, 2008
Ignoring Arbitration Award Not Unethical
A hearing committee of the D.C. Board on Professional Responsibility has recommended a four month suspension with reinstatement conditioned of proof of present fitness of an attorney for misconduct that included incompetent representation that had harmed clients, false statements to Bar Counsel and a court, and failure to cooperate with the disciplinary investigation. Post-hearing, the attorney had claimed due process violations in that (1) an expert retained by Bar Counsel had advised his former client to sue for legal malpractice (2) the assistant bar counsel and he "had known each other well in the past" and "is perhaps too close to the case and should have recused himself" and (3) the assistant bar counsel had made reference to the disciplinary record of his retained counsel. The committee found no merit to these contentions in recommending the sanction.
The decision actually is worth a close read, as the committee parses through a laundry list of charged violations, finding some and rejecting others. They seem to say that Bar Counsel needs to present expert testimony to sustain a lack of competence charge, but later acknowledge that the lawyer took fees and did nothing to earn them, which sounds like a Rule 1.1 violation. The committee also concludes that the failure of the lawyer to honor an arbitration award is not conduct that seriously interferes with the administration of justice in violation of D.C. Rule 8.4(d). This result may be correct in light of a prior precedent--In re Hopkins--that is described in the opinion. However, I think that this legal conclusion reveals the error of the mechanistic "elements of the violation" approach of the Hopkins case. (Mike Frisch)
Counsel's Unkept Promise Justifies Late Filing
The Supreme Court of Missouri reversed and remanded the dismissal of a claim for postconviction relief filed by a defendant serving a 30 year prison sentence. After the conviction was affirmed, the defendant was contacted by a public defender who told him to prepare his motion and send it to her to file. The defendant sent the motion but the public defender failed to file it. The court found that there was an attorney-client relationship although the lawyer had not been formally appointed:
Mr. McFadden had no other attorney handling his post-conviction matters. The public defender undertook to represent Mr. McFadden when she provided legal advice and directed him to provide the motion directly to her for filing. Mr. McFadden reasonably relied upon these instructions. At that time, no 29.15 motion having yet been filed, no case existed to which a public defender could formally be appointed. The fact that the court had yet to appoint the public defender or that she had not yet entered an appearance is in no way dispositive as to the formation of an attorney-client relationship, however. This Court looks to the substantive nature of the contacts within a relationship, regardless of what formal or procedural incidents have occurred, to determine whether "advice and assistance of [the] attorney is sought and received." Longo, 789 S.W.2d at 815.
This Court emphasizes that this opinion is limited to this specific factual scenario where counsel overtly acted and such actions prevented the movant's timely filing. The record shows Mr. McFadden timely prepared his motion for post-conviction relief and provided this motion to his counsel well before it was due to the court. Counsel, however, actively interfered with the timely filing and, despite her receipt of Mr. McFadden's motion for post-conviction relief on September 28, 2006, she did not file his motion until October 12, 2006, one day after the filing date. Such active interference, as demonstrated here, constitutes abandonment. In these unique circumstances, the motion court is authorized to reopen the otherwise final post-conviction proceeding.
Legal Secretary Blows Whistle, Lawyer Disbarred
A single justice of the Maine Supreme Judicial Court has approved a stipulated waiver of bar disciplinary proceedings and ordered the disbarment of an attorney who had initiated the investigation by a self-report. He had deposited firm fees into a personal account and, in part, made false denials of the misconduct when first confronted by his firm's managing partner.
There was also a bar complaint filed by a person who had served as the lawyer's secretary for almost six years. The secretary also advised firm management of her concerns. The complaint alleged misappropriation of approximately $300,000, and the lawyer initially falsely denied "a substantial portion of his serious misconduct" by claiming diversion of only $77,500, which he repaid to the firm. He pled guilty to theft offenses and is required to make restitution totalling slightly under $300,000 to the firm as a condition of probation. He also has agreed to plead to federal tax evasion charges. (Mike Frisch)
Reciprocal Discipline For Dentists
The full Massachusetts Supreme Judicial Court considered a series of questions relating to the proposed reciprocal discipline of a dentist in light of actions taken in Rhode Island. The court remanded the matter to a single justice of the court, holding:
We hold that the board has the authority to impose reciprocal discipline in this case, and in the absence of other material issues pending before the single justice, we proceed to consider the discipline imposed by the board. The board revoked Anusavice's license to practice dentistry in Massachusetts, a level of discipline substantially greater than that imposed in Rhode Island. While in other circumstances this disparity might raise a concern, it does not do so here because the extent of the discipline was based not only the discipline imposed in Rhode Island, but also on Anusavice's history of discipline and regulatory noncompliance in Massachusetts, as well as his criminal misconduct.
The board has broad latitude in shaping appropriate sanctions in each case, and we defer to the board's expertise in making those determinations. Birudavol v. Board of Registration in Med., 448 Mass. 1031, 1033 (2007), quoting Sugarman v. Board of Registration in Med., 422 Mass. 338, 347 (1996). We review the sanction imposed for abuse of discretion. Kvitka v. Board of Registration in Med., 407 Mass. 140, 143 (1990). Here, we find no abuse of discretion. The decision was accompanied by a statement of reasons. Those reasons were supported by substantial evidence, and "the petitioner has not demonstrated any 'extraordinary ... circumstances' that would justify our interference in the board's exercise of its discretion in terms of the sanction." Kobrin v. Board of Registration in Med., 444 Mass. 837, 850 (2005), quoting Weinberg v. Board of Registration in Med., 443 Mass. 679, 687 (2005).
The case is Anusavice v. Board of Registration in Dentistry, decided July 11, 2008. (Mike Frisch)