August 8, 2008
An Illinois hearing board has recommended a 45-day suspension of an attorney who was found to have violated Rule 4.2 (unauthorized communication with represented party) by interviewing a defendant separately charged in a criminal case involving first degree murder out of the same incident in which the attorney's client had been accused. The board found:
The undisputed facts are that in April 2006 Anthony Bell and Christopher Mixon were charged by separate informations in Knox County with First Degree Murder arising out of the same incident. Bell was charged in Case Number 06 CF 241, based upon the theory that Bell was the person who actually shot and killed Thomas Lynch. Mixon was charged in Case Number 06 CF 242 on the basis of accountability. The State’s Attorney’s theory for Mixon’s accountability was that Mixon handed the gun to Bell immediately before Bell shot and killed Lynch. The evidence to support the allegation that Mixon had handed the gun to Bell came from Bell’s post-arrest statement to the police. Bell’s statement was videotape and transcribed. In his statement, Bell claimed that Mixon handed him the gun immediately before Bell fatally shot Lynch, and that he (Bell) would not have taken any action against Lynch "[i]f Chris wouldn’t have handed [Bell] the gun."
The public defender, James Harrell, was appointed to represent Bell, and the alternate, or conflict, public defender, Geoffrey Campbell, was appointed to represent Mixon. Campbell became ill, and the Respondent was appointed to replace Campbell as Mixon’s attorney on May 8, 2006. Anthony Bell sent a letter to the Respondent on May 10, 2006, stating that he was not satisfied with Mr. Harrell’s representation of him, and asked if the Respondent "would pick up my case." Bell also stated in his letter that he would testify that Mixon did not hand him the gun. After receiving Bell’s letter, the Respondent asked her investigator, Mac Glass, to visit Bell at the jail and find out if Bell was willing to speak with the Respondent. Glass met with Bell, and reported to the Respondent that Bell would speak with her. On May 23, 2006, the Respondent went to the county jail, accompanied by a court reporter and Mr. Glass, and spoke with Bell. The Respondent did not contact Mr. Harrell about her interviewing Bell. Bell gave a statement to the Respondent at the jail and a transcript of the statement was prepared by the court reporter. In the transcribed statement, Bell claimed that Mixon had not handed the gun to Bell. The Respondent did not provide Mr. Harrell with the transcript of Bell’s statement.
The hearing board rejected the suggestion that the Rule did not apply to related cases where defendants in related cases were not jointly charged:
We note that the refusal of a co-defendant’s counsel to allow a respondent to speak with the co-defendant is not a necessary requirement for a violation of Rule 4.2. A violation occurs when a respondent does not "obtain the prior consent" of the co-defendant’s counsel. (Rule 4.2) However, communicating with a co-defendant after his or her attorney has refused consent to do so, is a "blatant disregard of his co-counsel’s wishes" and more aggravating. Morelli, 01 CH 120, Review Board Report at 15.
We also note that we reject the Respondent’s testimony that she did not think Mixon and Bell were "co-defendants." The Respondent was the only one involved in the Mixon/Bell matter who indicated that Mixon and Bell were not co-defendants. Public Defender Harrell believed Mixon and Bell were co-defendants. Alternate Public Defender Campbell believed they were co-defendants. State’s Attorney and now Circuit Court Judge Mangieri referred to Mixon and Bell as co-defendants. Finally, the judge presiding at Mixon’s trial described Mixon and Bell as co-defendants. Thus, the decision in Morelli, as well as the decisions set out below, provided notice that the Respondent’s conduct violated Rule 4.2.
The attorney also was found to have violated Rules 1.16 (withdrawal from representation) and 8.4 by failing to provide Bell's transcribed statement to Mixon's new counsel. The dishonesty finding was based on the false denial that she had any such statement. (Mike Frisch)
Dangers Of Self-Representation
A complaint filed by the Illinois ARDC alleges that intemperate conduct by an attorney representing herself in matters related to a marriage dissolution violated ethics rules:
Since at least May 2004 through October 2006, Respondent represented herself in certain post-judgment issues.
On or about October 20, 2006, Kierre [the ex-husband] who was at that time, represented by Margaret Katherine Avery ("Avery"), obtained an emergency order of protection against Respondent. On or about November 22, 2006, Respondent filed a motion to vacate the emergency order of protection that was entered against her. The motion was scheduled to be heard on December 14, 2006 by Judge Veronica Mathein. On or about December 8, 2006, Avery filed a motion to dismiss Respondent’s motion to vacate the emergency order of protection, which was also scheduled to be heard on December 14, 2006.
On December 14, 2006, Respondent did not appear and Judge Mathein entered an order striking Respondent’s motion to vacate the emergency order of protection.
Approximately a half-hour after Judge Mathein struck her motion, Respondent appeared in court, learned that the motion had been stricken, and asked the clerk to recall the case. Respondent was told that the matter would have to be recalled later that afternoon because Judge Mathein was no longer available. Respondent left the courtroom and walked out to the hallway. When Avery approached Respondent in the hallway, with a copy of the order that has been entered striking Respondent’s motion, Respondent yelled expletives at Avery while pointing her finger in Avery’s face. Avery returned to the court room to get the assistance of the Deputy Sheriff, at which point Respondent left the building.
Later that afternoon of December 14, 2006, Respondent returned to Judge Mathein’s courtroom and asked Judge Mathein to reinstate the motion. During the hearing, Respondent yelled at Avery and yelled at Judge Mathein, and was escorted out of Judge Mathein’s courtroom by court security personnel. While outside the courtroom, Respondent shouted back toward Judge Mathein’s courtroom that a Nevada family law judge had been shot "for doing what Judge Mathein did to [Respondent]."
The above-described conduct led to a disorderly conduct conviction. The attorney was arrested on the criminal charges and incarcerated for four months because bond was not posted. She was sentenced to time served when the case was resolved by guilty plea to the disorderly charge.
The attorney also is charged with unauthorized practice in an unrelated matter. (Mike Frisch)
August 7, 2008
The Ostrich Approach
The Pennsylvania Supreme Court adopted a recommendation (appended to the court order) for a suspension of a year and a day of an attorney who had been the subject of an informal admonition in February 2007 for commingling and other Rule 1.15 violations. The letter imposing the admonition notified him that he must appear at the offices of Disciplinary Counsel to have the admonition administered. He did not reject the admonition and failed to appear as directed. He then did not respond to a further letter that was personally served and did not complete CLE obligations imposed along with the admonition. As a result, new charges were filed and service was attempted on five occasions. He failed to attend the hearing on the charges.
Thus, ignoring an admonition led to a sanction that requires the lawyer to petition for reinstatement:
The record is devoid of any explanation for [his] actions. For the sake of the public, the Board cannot allow [him] to continue practicing without an assessment of his fitness to do so.
Does anyone with bar discipline experience in Pennsylvania know what happens when an attorney has an admonition administered? Does the attorney have to listen to a reading of the letter? It may be embarrassing but it would preferable to a lenghty suspension with a fitness showing. (Mike Frisch)
Insufficient Evidence Of Moral Change
An attorney who had been indefinitely suspended in 1991 was denied reinstatement by the Minnesota Supreme Court. The court concluded that he had not demonstrated the "requisite moral change" and competence to be restored to practice. A family law solo practicioner, the attorney had been placed on disciplinary probation and subsequently had the probation revoked. There had been 19 separate complaints against him when the suspension was imposed.
The court noted that the moral change element for purposes of reinstatement is a higher burden of proof than that for an applicant seeking admission and accepted the panel's conclusion that the petitioner had failed to meet his burden of proof. He had not paid restitution in two matters and had not "develop[ed] sufficient plans to avoid future misconduct..." Fans of the movie Fargo will note that the attorney had attributed his disciplinary problems to, among other things, "splitting his time between his work in the Twin Cities and his family in the Brainerd area." (Mike Frisch)
The Arizona Disciplinary Commission recently approved a hearing officer's report that had recommended censure of an attorney who had retained a doctor to research and review medical records of cases involving his clients and potential clients. The doctor sued the lawyer for payment of her bill, which the lawyer contended "was for an amount far in excess of the agreed upon amount." The lawyer's answer to the suit contained 55 exhibits that revealed personal and confidential information, such as "medical information, diagnoses and medical histories, phone numbers, email addresses, and home addresses" as well as "obstetrical and gynecological details" concerning the clients and prospective clients. Attached also were emails that disclosed the doctor's opinion on the merits of cases and a settlement letter that contained confidential information.
After notice of a charging letter from the State Bar, the attorney sought an order sealing the exhibits, which the court "[f]or some unknown reason" had denied. The attorney was remorseful and had agreed to the discipline. Nonetheless, "[a] lawyer with those years of experience [admitted in 1999] is expected not to supply confidential information as an exhibit to a court pleading without taking precautions such as filing the documents under seal." (Mike Frisch)
"Not Fit To Practice Law"
Another day, another permanent disbarment, from the Ohio Supreme Court. This case involved an attorney with a prior disciplinary record who was found to have engaged in a prohibited business transaction with a client. The misconduct is described on the court's web page:
... by paying advance distributions “against future profits” to himself and a third partner in the trust, and failing to repay the remaining partner who had capitalized the trust when those profits failed to be realized, Marosan violated the state discipline rule that bars an attorney from entering into a business transaction with a client when they have differing interests and the client expects the lawyer to exercise his professional judgment for the benefit of the client. The Court also affirmed the board’s finding that, by failing to answer the complaint filed against him or to respond to multiple inquiries from authorities investigating his alleged misconduct, Marosan also violated the state bar governance rule that requires attorneys to cooperate with all disciplinary investigations.
In setting the sanction for his misconduct as disbarment, the Court noted the aggravating factors that Marosan’s law license has been under suspension since October 2005 for two prior incidents of professional misconduct, that he acted with a selfish or dishonest motive, and that he caused harm to a vulnerable client and failed to make restitution. The Court concluded that “Respondent’s conduct in this matter – and in his previous disciplinary cases – demonstrates that he is not fit to practice law.”
Non-Compliance With New York Retainer Filing Requirement May Negate Fee Claims
The New York Appellate Division for the First Judicial Department recently held that the failure to timely file a retainer agreement, as required by law, is generally fatal to a claim for attorneys fees between lawyers:
With one exception, the motion court properly granted defendants summary judgment to the extent indicated in this fee dispute between attorneys, where plaintiffs failed to file retainer statements in compliance with Rules of the Appellate Division, First Department (22 NYCRR) § a prerequisite to receipt of compensation for legal services" (Rabinowitz v Cousins, 219 AD2d 487, 488 ). Plaintiffs' belated filing of several of the subject retainer statements was insufficient to preserve their right to recover legal fees. Indeed, the record shows that these statements were only filed in response to defendants' motion for summary judgment and plaintiffs did not seek permission to file the statements nunc pro tunc. Nor did plaintiffs offer a reasonable excuse for their failure to timely file (compare Matter of Abreu, 168 Misc 2d 229, 234 ).
However, with respect to the first cause of action relating to the Brooks case, the record indisputably shows that plaintiff Fishkin filed a retainer statement on October 31, 1994, which was 18 months after he was retained, but only seven days after defendants belatedly filed their own retainer statement in the same matter. While the motion court may have been confused by Fishkin's later nunc pro tunc filing of an amended retainer statement in June 2006, we find that, taken together, Fishkin's initial 1994 filing and his 2006 nunc pro tunc filing create a triable issue as to whether there was sufficient compliance with 22 NYCRR 603.7(a)(3) to permit this action to proceed.
August 6, 2008
Shaken Baby Disciplinary Charges
The Illinois ARDC has recently filed a complaint alleging that a lawyer "violently shook" one of his five-week old twin sons, which led to a cerebral hemorrage. The child showed signs of spasms the next day during brunch at a country club with his parents and paternal grandparents. According to the complaint, the lawyer had initially denied knowledge of the cause of the injuries and later claimed to authorities that he had dropped the infant while tossing him in the air. He pled guilty to a criminal charge of aggravated domestic battery and is charged in the bar complaint with the false statements and criminal conduct that adversely reflects on fitness to practice law. (Mike Frisch)
Halverson re-election riddleIn Nevada, we're watching the judicial discipline hearing of Judge Elizabeth Halverson, who's been accused of, inter alia, making her bailiff give her foot rubs, falling asleep on the bench, eating with jurors during a criminal trial, and putting her husband under oath to find out if he cleaned the house. See here. My question is: assuming she gets thrown off the bench for her current term, what happens if voters re-elect her for a new term, given the power of incumbent name recognition? (posted by Nancy Rapoport)
Malpractice Verdict Overturned
In a legal malpractice case predicated on the theory that the client would have done better at a trial than in settlement, the Ohio Supreme Court held that:
...the client must prove both a) that he would have prevailed if the case had gone to trial, and b) that the outcome of the trial would have been better than the outcome provided by the settlement. The Court’s 6-1 decision was authored by Justice Maureen O’Connor.
The case involved an appeal by the Cleveland law firm of Goodman Weiss Miller LLP (GWM) of a 2005 jury verdict that awarded $2.4 million in legal malpractice damages to a group of the firm’s former clients including Environmental Network Corp (ENC). The malpractice award was based on the jury’s finding that negligent representation by GWM had placed the plaintiffs in a position where they were forced to accept a settlement in which they recovered a lower amount of damages from the defendants than they would have recovered in a court judgment if GWM had competently tried the case to its completion.
GWM appealed the trial court’s judgment to the 8th District Court of Appeals. Among other alleged errors, the law firm argued that the trial court gave the jury faulty instructions regarding the plaintiffs’ burden of proof. GWM also alleged that the trial judge should have granted a post-verdict motion to set aside the jury verdict or order a new trial because the plaintiffs had not presented sufficient evidence to establish: a) that negligent representation by GWM was the proximate cause of the plaintiffs’ claimed losses; or b) that the plaintiffs would have recovered a higher amount of damages from the defendants if the case had been tried to judgment. The 8th District affirmed the jury award in favor of the plaintiffs. The Supreme Court agreed to review the court of appeals’ ruling.
In today’s decision, the Court reversed the 8th District and remanded the case to the trial court with a directive that it set aside the jury verdict and enter judgment in favor of GWM.
The above summary of the holding from the court's web page notes that the dissenting justice concludes that:
...the majority’s syllabus “goes too far (in) requiring proof of a case within a case whenever a plaintiff agrees to a settlement and then alleges attorney malpractice in the underlying case. I believe it is possible for legal malpractice to be so egregious that proof of a case within a case would be unnecessary. This case, in which the attorneys steadfastly refused to continue with trial despite their clients’ sincere desire to continue, may be such a case.”
Even if a ‘case within the case’ requirement should apply here, Justice Pfeifer added, “(G)iven the procedural posture of this case, the appellees ... need establish only that there was sufficient evidence to defeat a motion for judgment notwithstanding the verdict. I dissent because I believe that the evidence in this case, when weighed most strongly in favor of ENC, is sufficient to defeat a motion for judgment notwithstanding the verdict.”
One justice concurred only in the majority's result. (Mike Frisch)
No Fourth Chance
The Ohio Supreme Court ordered permanent disbarment as the sanction for an attorney's third brush with bar discipline. Suspensions had been imposed in both earlier cases. The court's web page summarized the misconduct found in this matter as follows:
In today’s unanimous per curiam decision, the Court adopted findings by the Board of Commissioners on Grievances & Discipline that Hickman falsely informed one client that he had conducted discovery in the client’s case and that a pre-trial hearing and a trial date had been scheduled when they had not, improperly accepted a $1,500 fee advance from another client while he was under suspension and failed to inform that client that additional grievances were pending against him, and failed to refund unearned portions of fee advances totaling $22,500 he had collected from a client in a divorce action prior to his first suspension from practice in 2005.
In light of the aggravating factors that Hickman has been sanctioned for similar misconduct on two prior occasions, acted with a dishonest or selfish motive, engaged in a pattern of misconduct involving multiple clients and failed to make restitution, the Court agreed with the board’s recommendation that the appropriate sanction for his most recent violations was permanent disbarment.
The Massachusetts Supreme Judicial Court held that summary judgment was improperly granted to two criminal defense attorneys who had been sued for legal malpractice. The defendant was charged with arson and other offenses in federal court. His conviction at a first trial was overturned based on a finding of ineffective assistance of counsel. A second trial led to a jury verdict of not guilty on all charges.
The client then sued his lawyers from the first trial. The court found summary judgment improper because there was sufficient evidence of actual innocence:
The government's evidence regarding Correia's role in the setting of the fire was, as the Federal judge described it, a "patchwork of circumstantial evidence" that, as is apparent from the evidence at the second trial, was largely based on two highly disputable premises: first, that Correia was suffering from severe financial woes and set the fire to recover insurance money; and, second, that Correia purposefully disarmed his fire alarm, resulting in much greater damage to the property. The testimony of defense witnesses at the second trial seriously questioned, if not flatly refuted, both premises. In addition, Correia testified at the first trial and at his deposition in this proceeding that he played no role in setting the fire.
In this posture, the question to be resolved is whether to credit the circumstantial evidence suggesting Correia's guilt, or the evidence suggesting his innocence. That determination is a "factual one, properly delegated to the jury ... rather than being decided by a judge ... based on the judge's impression of how guilty or innocent the plaintiff appears to be." Where questions of triable fact remain, "the determination of actual innocence is rooted in the goal of reliable factfinding," best left to the jury. (citations omitted0
The case is Corriea v. Fagan & others, decided August 5, 2008. (Mike Frisch)
August 5, 2008
Lost in Translation
Upon hearing the sad news that McDonald's is altering its Dollar Menu, a decision that may affect me more than gas costs, I did recall my favorite billboard for the U.S. icon, this outside the Australian town of Yass. Yass is near Canberra, says this site.
Second-place sign after the jump.
Wald on Client Communications, the Model Rules' Concept, and Making It a Dialog
Eli Wald (Denver) has posted to SSRN his article, Taking Attorney-Client Communications (and therefore Clients) Seriously. It is also in 42 University of San Francisco Law Review 747 (2008). Here is the abstract:
This Article argues that the communications regime orchestrated by the ABA Model Rules of Professional Conduct is intentionally designed to create a one-way street, systematically channeling information in the attorney-client relationship in lawyers' direction while often leaving clients in the dark. Furthermore, the asymmetric distribution of information in the attorney-client relationship is not in clients' best interests but rather grounded in lawyers' self-interest and in a paternalistic approach that fails to take communications, and therefore clients, seriously. Finally, taking communications, and thus clients, seriously requires adopting a new communications regime that would mandate disclosure of all material information to clients. The Article proposes a materiality-based communications regime and explores its application in several contexts.
August 5, 2008 in Abstracts Highlights - Academic Articles on the Legal Profession, Privilege | Permalink | Comments (0) | TrackBack
Welcome to Blogworld: Law & Development Blog
A belated welcome to legal blogging for the Law & Development Blog, edited by Professors Tom Ginsburg (U. Chicago) and Veronica Taylor (U. Washington). It is part of the law profs network, as we are. International and economic development is obviously a growing and important legal specialty. Best of luck!
I noticed that Tom is a 1999 PhD grad of Berkeley's Jurisprudence & Social Policy Program (as I was, earlier), as well as earning his J.D. and B.A. at Berkeley. (In fact, I may have taught him as a grad instructor. Then again, it is a fairly large university.) He recently joined the Chicago law faculty from the University of Illinois.
Notre Dame Combines Legal Ethics CLE With Football Tickets on Home Saturdays, Except Michigan Game
The program and schedule are here. Nice idea. "In addition to the two-hour CLE, a limited supply of football tickets is available to CLE participants. A participant may purchase up to two football tickets, while limited supplies last, and those tickets will be available for pick-up during the CLE." Nice enforcement.
The 2-hour CLE programs are on a variety of subjects, some including ethics hours. The Michigan game is sold out but the CLE program itself seems available. Participants need not be Notre Dame alumni. Indeed, far from it, Jeff could go.
This Blog Post Is Not Very Unique
Posted by Alan Childress
But it is somewhat unique. Over at the new legal writer blog, its author Ray Ward and two commenters are debating whether it is unacceptable to ask for the "most unique" entries in a survey. Is criticism of that usage proper or just pedantic? I am sure Jeff has strong feelings on this matter since propriety and pedantics are in his wheelhouse -- as are the English language and accurate crossword puzzles. And likely a curiosity about the origins of Scrabble or the correction of common mondegreens.
Commenter Texas Appellate Lawyer writes, "Unique does mean one of a kind. But, something can be one of a kind but not that different from other things, while something else can be one of a kind and far different than anything else." He or she disagrees with "people who claim that things are unique or not unique, and that there are not varying degrees of uniqueness...." I added my similar view.
Ray would be willing to let this slide for Joe Blow (me), but not for the ironic source in which he found very unique used: "for crying out loud, this is Merriam-Webster. Hence the title of this post. If MW can’t stick to proper usage, then the foundation of civilization itself is decayed." Sounds almost like the inter-greek council speech in Animal House: I am not going to sit here and let Merriam-Webster badmouth ... the United States of America!
This scrap follows on our earlier debate at Ray's blog, under the post Why Johnny Can't Write, over whether legal writing "fellows" with short-term contracts are an acceptable or preferred model of teaching legal research and writing to 1Ls (or just different than). Commenters have strong feelings. I do not know why I felt the need to argue with others (experts) over these two matters, but I did. So I link to them with the idea that I might convince you to join in. Hopefully. [Update: also picked up, before, by Greg May at his California Blog of Appeal here.] If you do not, I will not be decimated.
An Arizona hearing officer has recently filed a report approving an agreed disposition of a 90 day suspension followed by two years probation in a matter involving misconduct committed in the course of representing a divorce client. The lawyer had raised his fees four times during the representation without a written agreement and had charged attorney rates for clerical tasks. He acquired a pecuniary interest adverse to the client (a promissory note for unpaid fees with a deed of trust secured by the client's home) and without advising of the desirability of independent legal advice. He then assigned the interest to his mother and divulged confidential information to mom,and engaged in a conflict of interest by representing his mother in related matters adverse to the client. The lawyer had participated in fee arbitration and there were no issues regarding restitution. (Mike Frisch)
August 4, 2008
The Last Installment
The District of Columbia Court of Appeals disbarred an attorney who had misappropriated over $10,000 as court-appointed guardian of a ward. The lawyer had failed to cooperate with the Auditor-Master and with the Bar's investigation. The lawyer had written checks to "herself, her mother, and to a merchant to pay the last installment on [her] son's class ring." Lamentably, the court followed a recommendation not to make restitution a condition of any future reinstatement because the estate had been made whole by a surety. The Board on Professional Responsibility concluded that restitution was unwarranted because the issue was not "within the Board's competence as the legal arrangement between a surety and its client can be complex and could be impacted by contracts not contained in the record." Does that lack of expertise justify allowing the lawyer to keep the stolen funds and still seek reinstatement? (Mike Frisch)
Antitrust Practitioner Survey
If you practice antitrust law outside of the government, please take 8-12 minutes to hop over to Danny Sokol's Antitrust & Competition Policy blog to participate in an online survey. The point is to give him some data to better understand how antitrust law shapes compliance.