August 23, 2008
Part Of Nothing
A Pennsylvania lawyer (admitted in 1966) was the subject of two suspension orders. The first suspended him for three years; the second for a consecutive two-year term. He failed to make the required notifications of the orders to all his clients (he described his notifications as "semi-compliance"with his obligations) and failed to pay the costs of the disciplinary prosecutions. Further, he worked in the law office of his wife as a secretary/legal assistant and assisted with matters although it was not clear whether or not what he was doing involved the unauthorized practice of law. The Pennsylvania Supreme Court found him in contempt of the two suspension orders and ordered disbarment.
The attached report of the Disciplinary Board noted that he was not remorseful for his actions. The Board was less than impressed with his overall attitude: as to the costs, he said that "he owed nothing, he had nothing and the Board was welcome to any part of nothing." (Mike Frisch)
August 22, 2008
"Not To Be Taken Lightly"
A lawyer prepared a durable power of attorney for a friend's mother at no charge and thereafter notarized the mother's mark on the document even though he had never her and had not witnessed the signature. The friend, as one might expect, improperly used the power of attorney to take $40,000 for purposes unrelated to the care of the mother, who was hospitalized at the time. On release, she discovered the son's actions and had to retain the assistance of counsel to get her funds back.
After charges were filed by the Illinois ARDC, the lawyer agreed to a reprimand with the following language at the conclusion:
You are further advised that while this reprimand is not formally presented to the Illinois Supreme Court it is not to be taken lightly. This reprimand is a matter of public record and is on file with the Attorney Registration and Disciplinary Commission and may be admitted into evidence in subsequent disciplinary proceedings against you.
Tragedy Leads To Litigation
The tragic death of a 10 year old child in the crash of a private plane led to a case decided today by the Mississippi Supreme Court. The child lived with her mother in Wichita Falls, Texas. Her schooling and closest friends were in Texas. After the plane crash (which took place in Mississippi in connection with a visit) the father had the funeral and burial in Mississippi. The mother was the sole survivor of the plane crash and had been seriously injured. She protested to the extent that she was able to no avail. There was no prior Mississippi case on point, but the court considered the close ties of the child to Texas and the difficulty of the mother in visiting the grave. The court reversed the trial court ruling, ordering disinterment and burial in Texas. (Mike Frisch)
Read The Fine Print
Good advice from the La Crosse (Wisconsin) Tribune concerning upcoming judicial election campaign ads:
Chief Justice Shirley Abrahamson will be up for re-election and likely will face opposition from big-money groups running so-called "issue ads" that actually are de-facto campaign ads. Based on past history, the ads will likely play on negative, nasty themes.
The Wisconsin Democracy Campaign, a private group that tracks campaign spending and advocates for campaign reform, put out a report Wednesday that gave thumbnail sketches of the three conservative groups and two liberal groups involved in electioneering in the past two state Supreme Court races. On the conservative side are Wisconsin Manufacturers & Commerce, the Club for Growth and the Coalition for America's Families. Liberal groups include the Wisconsin Education Association Council and the Greater Wisconsin Committee.
When the relentlessly negative ads start running next fall, look carefully at the fine print that says which group is supporting the ad. Pay more attention to what the candidates say, and then make up your own mind and vote.
The principle applies to all elections, not just those involving judicial office. (Mike Frisch)
A Serious Crime
An aspect of effective regulation of the legal profession are rules that impose interim suspension pending final disciplinary action when an attorney is convicted of a "serious crime" as that term is defined by the rules of the disciplining tribunal. The North Dakota Supreme Court ordered such a suspension today:
The Court is satisfied that the evidence presented demonstrates that Fisher plead guilty to and was convicted of two misdemeanor counts of theft. Fisher's convictions for theft constitute a serious crime for purposes of N.D.R. Lawyer Discipl. 4.1C and N.D.R. Lawyer Discipl. 4.1D.
It is noteworthy that a misdemeanor may be considered a serious crime. A felony conviction is, by definition and without reference to the elements of the offense, invariably treated as a serious crime for interim suspension purposes. Generally, such an interim order of suspension may be vacated on a showing of good cause. Courts also will vacate such orders if the conviction is overturned. (Mike Frisch)
Conference Announcement: Using Empirical Data in Jury Trials
Posted by Jeff Lipshaw
My colleague and suite-mate, Mike Rustad, is co-chairing "Successful Strategies for Jury Trials," a day-long conference to be held at the Suffolk University Law School here in the heart of downtown Boston on Friday, October 24, 2008. The panels will include state and federal judges, distinguished trial lawyers, and two of the leading academics in jury research, Professor Valerie Hans (left) of the Cornell Law School, and Neil Vidmar (right) of the Duke Law School. Take a look at the brochure: the topics will include how to conduct pretrial jury management in light of empirical research, the best trial strategies, insights into how juries make decisions, how juries perceive experts, and the role of jury consultants.
Highly recommended. Enroll while it's hot!
August 21, 2008
An attorney who had been suspended for two years in Oregon received a lighter six-month suspension in Massachusetts. One of the misconduct findings related to theft charges where the attorney had taken a Hewlett-Packard personal digital assistant from an electronics store. Two other findings of misconduct in Oregon were not a basis for imposed identical reciprocal discipline in Massachusetts:
The other two matters for which the respondent was disciplined in Oregon - making false representations about the location of his principal law office in order to qualify for an exemption from the Oregon State Bar's professional liability insurance requirement, and practicing law during a time when he was administratively suspended for noncompliance with the State Bar's continuing legal education requirements - are not matters that would themselves result in discipline in the Commonwealth. This is so because there is no requirement that attorneys licensed in the Commonwealth to practice law carry professional liability insurance, and also no requirement that attorneys complete any continuing legal education programs as a condition of continued licensure. Accordingly, on its face, these acts of misconduct by the respondent appear to fall directly under S.J.C. Rule 4:01, § 16 (3) (b). Bar counsel contends, however, that the matter relating to false representations about the respondent's law office location involves allegations of conduct involving dishonesty or misrepresentations, which would violate, inter alia, Mass. R. Prof. C. 8.4 (c), 426 Mass. 1429 (1998), and thus would be subject to discipline here. The point is well taken, but bar counsel does not argue or cite any Massachusetts disciplinary cases in which an attorney has been suspended for two years on facts that are comparable to the facts of this case.
The single justice who entered the order concluded that a two-year suspension in Massachusetts would constitute a "grave injustice." The rule that permits departure from identical discipline has a provision that permits the court to adjust the sanction where the "misconduct established does not justify the same discipline in the Commonwealth." I am not sufficiently expert in Massachusetts sanction law to have an opinion whether the Oregon misconduct "justifies" a lesser sanction in the Commonwealth. I do not think that the imposition of two year would be anything close to a grave injustice.
Note that the Massachusetts reciprocal discipline rule significantly differs from the ABA Model Rule of Disciplinary Enforcement. Mike Frisch)
Change In Massachusetts?
The Massachusetts Board of Bar Overseers and Bar Counsel has issued a notice seeking comments on proposed revisions of the rules governing bar disciplinary proceedings. Among the proposals: giving Bar Counsel discretion not to open a file on a frivolous complaint, eliminating the requirement that an lawyer appear in person to be admonished, an acelerated hearing when admonishment is rejected, changes in prehearing motions practice, and reduction of delay in the reinstatement process. The notice provides a link to a redlined version of the proposals. (Mike Frisch)
Proposed Sanction Increased
The Arizona Disciplinary Commission affirmed a hearing officer's findings of misconduct but rejected the proposed suspension of six months and a day in a case involving multiple ethics violations. The hearing officer found that the lawyer had knowingly withheld evidence in litigation, submitted a claim for fees that contained "outright fabrications," submitted pleadings that "called into question [his competence] as a result of the confusing and unprofessional writing in his pleadings," and committed other misconduct in three matters. The hearing officer rejected the suggestion that "various physical and mental disabilities make all of his violations negligent." The most serious misconduct--"done out of greed" and an "intentional misinterpretation of the Rules"-- was not explained by his conditions.
The commission concluded that a one year suspension was more appropriate for misconduct that included lying to a tribunal. (Mike Frisch)
August 20, 2008
Bar Opposes Disclosure Of Application Information
The California State Bar has taken a position in opposition to the release of confidential information concerning applicants for bar admission, according to a report in Forbes.com. The Bar was responded to a request for information from UCLA Law Professor Richard Sander. The matter is before the California Supreme Court on a writ filed by Professor Sander. Forbes summarizes the arguments of Professor Sander and the Bar:
Sander theorizes that placing unqualified minority students in elite law schools results in lower bar pass rates than if they attended schools where their admissions credentials match those of their classmates. Calling the outcome the "mismatch effect," he suggests that preferential admissions policies may actually harm, rather than help, students of color.
The Committee of Bar Examiners and Board of Governors rejected Sander's request for applicants' bar exam results, gender, race and law school academic credentials after reviewing it in detail and considering the comments of numerous constituents, many of whom had provided information with the understanding it was confidential.
Given the detailed and comprehensive nature of information required of applicants for purposes of evaluating character and fitness, I agree with the bar that the expectation of confidentiality obligates the court to reject the writ.
UPDATE: here is a link to an article on the dispute that appears in the August 2008 online edition of the California Bar Journal. If anyone has the pleadings in electronic form, it would be very helpful to see the precise contentions of the parties. Mike Frisch)
Anger As Mitigation
An Arizona lawyer was hired as the executive director of a nonprofit corporation, leaving his employment as an assistant county attorney. He represented the nonprofit in a dispute with a general contractor and identified himself as "chief counsel" as well as executive director. When a participating member of the nonprofit expressed concern that there was a conflict in his multiple roles, his employment contract was not renewed. He then failed to maintain the nonprofit's client confidences and engaged in conduct involving dishonesty, fraud, deceit or misrepresentation
A hearing officer approved an agreement for a censure and one year of probation. The report notes that the nonprofit had shifting positions as to whether the accused was ever acting as its lawyer. The hearing officer found that the accused had obligations both as a lawyer and as the executive director.
One interesting issue raised was whether the lawyer's anger should be treated as a mitigating factor: "For anger to be substantial enough to preclude the attorney from knowing or understanding what he was doing, it would have to be substantial enough to the point that disability proceedings or interim suspension would be appropriate...anger to a lesser degree could be probative, along with other circumstantial clues, as to the attorney's actual knowledge and intent in committing the misconduct." (Mike Frisch)
August 19, 2008
The New Mexico Supreme Court removed a magistrate judge from his judicial office, rejecting the suggestion that the matter should have been considered by a special master rather than the Judicial Standards Commission. The judge was found to have engaged in an ex parte conversation with the complaining witness in a domestic violence case, promised a couple that he would help them with a landlord-tenant case and advised them on how to excuse another magistrate judge and (as the Commission found) "abused his power and improperly involved himself" in a DWI case where he knew the defendant's son. Removal from office was appropriate because:
...we agree with the Commission that the evidence demonstrates that Judge Rodella’s testimony lacked credibility. This lack of credibility and an apparent unwillingness to admit mistakes, combined with sufficient evidence of willful misconduct, lead us to conclude that Judge Rodella cannot serve as a judge. We therefore adopt the Commission’s recommendation that Judge Rodella be permanently removed from office.
A hearing officer in Arizona dismissed misconduct charges against an attorney who represented a client in civil litigation. The attorney chose a doctor to conduct a medical examination of the opposing party. The doctor wished to charge an additional $1,000 if opposing counsel insisted that the exam be videotaped. The rationale was that the doctor would have to take precautions to prevent HIPPA violations by clearing out other examination rooms to insure that the recording equipment did not pick up sounds from the adjacent rooms. Counsel did not want to pay the grand, and a motions hearing was held on whether the exam would be videotaped.
At the hearing, the accused attorney focused on other issues and did not advise the judge of the additional charge. Nor did opposing counsel so advise the judge. The lawyer informed the judge of the payment issue immediately after the motion had been granted. The judge got angry and the bar filed ethics charges.
The officer concluded that the omission was "the product of human error" as a result of the lawyer's focus on the issue whether good cause to videotape had been established: "it is understandable...that advocates sometimes get so focused on the main point of their argument that they lose sight of the fact that a completely different angle should be considered and addressed." The matter also was complicated by the fact that the motions hearing was conducted by telephone. (Mike Frisch)
No Mitigation For ADHD
A Louisiana hearing committee recently recommended the disbarment of an attorney who was the managing partner of a law firm's office in Baton Rouge. He had taken on a personal injury claim on behalf of two minors involved in an auto accident, settled the case for $150,000 and turned over the entire proceeds to the father of the injured children. The father thereafter kicked back approximately $50,000 (the case was a contingency fee matter) which the lawyer did not turn over to his firm. When confronted by his partners, the attorney falsely claimed the father was an "old friend" and that he had waived the fee. He later admitted the conduct with the explanation that he "got greedy."
In the bar discipline case, the lawyer claimed ADHD (attention deficit hyperactivity disorder) as mitigation but the hearing committee concluded that the condition "did not in any way affect his ability to discern right from wrong." The mitigation was undercut by evidence that the attorney was able to otherwise conduct his practice in an appropriate manner. (Mike Frisch)
August 18, 2008
Let's Not Meet By Accident
A hearing board in Louisiana has recommended a suspension of a year and a day of an attorney for misconduct arising out of a rear end collision. The lawyer asked the other driver if the matter could be resolved amicably between them. The other driver was employed at a law firm and "[a]ssumed I could trust an attorney. I agreed not to call the police and handle this between the two of us." The attorney falsely claimed to have insurance (she was illegally driving without it) and later falsely denied the accident altogether.
The charges (deemed admitted because the lawyer did not participate) involved, among other things, the false denials and multiple false statements to the Office of Disciplinary Counsel. (Mike Frisch)
Better Left Unsent
After twice rejecting proposed consent dispositions as unduly lenient, the Arizona Disciplinary Commission has recommended a 30-day suspension followed by two years probation based on the recommendation of a hearing officer after a full hearing. The attorney, admitted in 1991, was a defendant in a legal malpractice action "the first in his career." After the case settled, he sent emails to the former clients under an assumed name. The emails "threatened bodily harm" and used "profane and abusive language, and some contained slurs." The distressed clients contacted police, the lawyer was identified and was convicted of a misdemeanor harassment charge.
The hearing officer concluded that the conduct was "totally out of character" and that the lawyer "has learned a great deal of insight about himself" such that a lengthier suspension is not required. (Mike Frisch)
Informal Attire Not Unethical
A hearing officer in Arizona "[h]aving served as a disciplinary committee member or hearing officer for over 25 years" for the first time recommends "complete dismissal" of all misconduct charges against a lawyer admitted in 1999.
The alleged misconduct? First, the lawyer visited a police station to interview two officers wearing a t-shirt with "Let the fucking begin" across the front. His intent was to "communicate to the police officers his general feeling that his client was at a disadvantage in the judicial system by virtue of the police misconduct..." A prosecutor who was present was not offended but thought it was funny. Second, the lawyer opined to a prosecutor that another prosecutor was "an unethical piece of trash." Third, the lawyer wrote a note to a prosecutor complaining about the quality of magazines in her office's waiting room and had a subscription to Modern Drunkard magazine sent to her at the office, which she thought was intended as a joke. She did not put the magazines in the waiting room.
Bar Counsel charged the attorney with using means that had no substantial purpose other than delay and embarrassment and failure to abstain from "all offensive personality." Bar Counsel conceded that the conduct was "not the most serious but inappropriate" and sought informal reprimand. The hearing officer determined that "inappropriate" is not an interchangable concept with "unethical." (Mike Frisch)