September 12, 2008
"Too Clever By Half "
The Kansas Supreme Court imposed a public censure of an attorney charged with ethics violations in a custody matter. The court concluded that the evidence was insufficient to establish a violation of Rule 4.3 (dealings with an unrepresented person), adopting the conclusion of a hearing panel dissent:
...we are persuaded by the dissent's analysis of the alleged violation of KRPC 4.3. The first part of that rule prohibits an attorney, who is dealing with an unrepresented person on behalf of the attorney's client, from stating or implying that the attorney is disinterested. Jenkins [the unrepresented] testified that Jensen [the accused attorney] did not state who he was representing. While Jensen may have been too clever by half in his interview techniques, we cannot say from the record that it is highly probable that Jensen intentionally implied that he was disinterested.
What is crystal clear from the evidence is that Jenkins misunderstood the role that Jensen was performing in the custody dispute. However, the interviewee's misunderstanding is not controlling. The second part of KRPC 4.3 directs that an attorney who "knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter" is to "make reasonable efforts to correct the misunderstanding." 2007 Kan. Ct. R. Annot. 532. The question, then, is whether Jensen should have known that Jenkins misunderstood Jensen's role.
In his letter to the trial judge, Jenkins acknowledged that he would have freely assisted Anderson's attorney with understanding everything concerning succession planning and transfers in the railroad industry. However, he said he felt humiliated and angry that he had been so forthcoming with other information, such as Mr. Duncan's salary, which he would not have shared if he had known with whom he was speaking. In other words, the contention is that Jensen should have known about the misunderstanding because of the scope of the information that Jenkins provided. However, we are unconvinced that the misunderstanding was readily apparent from the content of Jenkins' side of the conversation.
Moreover, there were other portions of the conversation which might well have provided Jenkins with a clue as to Jensen's role. When Jenkins said the children would want for nothing while residing with the Duncans because of Mr. Duncan's salary, Jensen responded that they would want for their father, at least suggesting an advocacy of the father's position. Given our clear and convincing standard, we cannot find that the evidence established that it was highly probable that Jensen should have known of Jenkins' confusion. Accordingly, we find that Jensen did not violate KRPC 4.3.
The court found insufficient evidence that the lawyer violated a judge's order to not assist his client with responses to a two-question "parenting quiz" but found he had improperly instructed a witness (the above-referenced Mr. Jenkins) to disregard a subpoena. (Mike Frisch)
Dismissal Of Malpractice Action Affirmed
A New Hampshire law firm was retained to pursue a medical malpractice action arising out of birth injuries to the child of their clients. The retainer argeement provided for a 40% fee with a handwritten notation "in any event subject to court approval if necessary." Also there were crossed out references of 45% and 50%. The case settled for $2.25 million and fees of $750,000 were approved. The attorneys had records of 302 hours devoted to the case.
Two years late, the guardian of the child's estate moved for return of the fees. The court dismissed the motion without prejudice. The estate then sued the firm for legal malpractice and that action was dismissed. On appeal, the New Hampshire Supreme Court affirmed. The estate had not produced sufficient expert evidence on causation. The actual fee was 33% and the claim that 25% was "fair, reasonable, standard and customary" required expert testimony. Distinguishing an earlier case that had held that attorneys' fees "require the highest level of scrutiny," the court noted that the case was a malpractice action and not a proceeding to enforce the fee agreement. (Mike Frisch)
A Letter Better Left Unsent
The Iowa Supreme Court imposed a public reprimand of an attorney who had been retained in a shower installation project dispute. The client had installed shower tiles and his contractor refused to pay his bill due to an unrelated disagreement. Opposing counsel provided the lawyer with a warranty document that the client claimed was a forgery. The lawyer then wrote a letter to opposing counsel that threatened criminal charges and offered that the client would not to cooperate in a criminal investigation if he was paid in full. He also offered to destroy the allegedly forged document as part of the settlement. Opposing counsel sent the letter to the Disciplinary Board and as a result ethics charges were filed.
The Grievance Commission found some of the charged violations and issued a private admonition, which was appealed to the court. The court found that the offer to destroy evidence was prejudicial to the administration of justice and adversely reflected on fitness to practice. The court concluded that admonition was insufficient but found "nothing in the record to suggest that the public would be at risk of further harm if we allowed [him] to continue to practice law." (Mike Frisch)
MJP In Florida
The Florida Supreme Court has adopted, with some modifications, rules governing multi jurisdictional practice in that jurisdiction. The court attached to its order its final version of the new rule, with the modifications underscored. The rule will go into effect on January 1, 2009 at 12:01am. Happy New Year! (Mike Frisch)
September 11, 2008
One Point Shy
An attorney who had been suspended by the Minnesota Supreme Court for an indefinite period of not less than 90 days also was required to take and pass the state bar professional responsibility exam after he had been conditionally readmitted. He He asked the court to accept his score of 84 on the MPRE as satisfying that condition. The score is one point shy of Minnesota's passing score of 85. He asked for unconditional reinstatement anyhow and the court said no:the petitioner's conditional reinstatement was revoked and he was invited to try again when he gets the 85. (Mike Frisch)
A Light Sentence
The New York Appellate Division for the Third Judicial Department imposed reciprocal disbarment based on the attorney's consent to disbarment in New Jersey. The lawyer had converted $2.1 million in entrusted funds from fifteen clients over an eight year period. Notably, the order recites that the attorney was prosecuted in New Jersey Superior Court and received a sentence of five years probation. (Mike Frisch)
September 10, 2008
Another Day, Another Disbarment
The web page of the Pennsylvania Bar Disciplinary Board reports that William S. Lerach was disbarred on consent in that jurisdiction on September 4, 2008. (Mike Frisch)
Criminal Conduct Leads To Proposed Suspension
A Louisiana Hearing Board has proposed a two-year suspension of an attorney for three instances of criminal behavior. The first involved driving while intoxicated. The second was an incident where he had smashed his ex-wife's car with a shovel and fled from police. The third also involved driving while intoxicated that had resulted in an accident causing injuries to the other driver. The lawyer fled the scene and was arrested by police hiding in the woods. (Mike Frisch)
The Louisiana Attorney Discipline Board has dismissed misconduct charges against an attorney who has practiced law for over 50 years without prior discipline. The attorney hired a law graduate who had passed the bar but was not yet admitted. He was accused of aiding unauthorized practice and improper fee sharing with a non-lawyer. The board majority found that the law grad had functioned as a paralegal and that the payment arrangement was that of an independant contractor rather than a fee sharing arrangement. A dissent would find the violations and impose a period of suspension. (Mike Frisch)
A construction worker who suffered injuries as a result of a "horseplay" incident at his workplace is limited to workers' compensation recovery and is precluded from bringing third-party actions for his injuries, according to a decision of the Delaware Supreme Court. The employee worked as a welder and pipefitter. He was called into the bathroom by fellow employees and wrapped in duct tape from head to foot, causing traumatic injuries that led to a $300,000 award. There had been a prior duct tape incident along with other workplace horseplay that included setting a napping employee's pants on fire. (Mike Frisch)
September 9, 2008
No Discipline For Driving While Impaired
The Michigan Attorney Discipline Board rejected a hearing panel recommendation for probation and entered an order of no discipline in a case involving a conviction for operating a motor vehicle while impaired. Probation was not appropriate where there was "no evidence whatsoever regarding his competence to practice law or the quality of the services rendered to his clients." The attorney had compleed the sentence imposed in the criminal case. The Board held that the single instance of driving while impaired and evidence of "slips" were not "a sound reason for the imposition of professional discipline." (Mike Frisch)
Political Hiring Results In Bar Charges
The Illinois Disciplinary Administrator has filed a complaint alleging misconduct against the former Assistant Commissioner of the Chicago Water Department for using a political litmus test in hiring employees in contravention of a court-ordered permanent injunction (the "Shakman" decree):
Starting in 1992, while employed as Assistant Commissioner of the Water Department, continuing through 1999, when Respondent was Commissioner of the Sewer Department, Respondent conducted or participated in the hiring or promotion process for hundreds of positions within those departments. Most, if not all, of these positions were considered "Shakman covered" positions, meaning the hiring and promotion of potential job applicants for these positions had to comply with the 1983 "Shakman Decree," which made it unlawful to take any political factor into account in hiring public employees, as stated in Paragraph One, above.
At all times alleged in this complaint, Respondent was aware of the Shakman Decree and understood the responsibilities and restrictions inherent in the Shakman Decree, as stated in Paragraphs One and Two, above, as they related to City of Chicago hiring policies.
Starting in 1992, while employed as Assistant Commissioner of the Water Department, continuing through 1999, when Respondent was Commissioner of the Sewer Department, when conducting or participating in job interviews for Shakman-covered positions, Respondent received a list of names prepared by the Office of Intergovernmental Affairs ("IGA"), a division within the Office of the Mayor of the City of Chicago. Respondent knew that those named on the IGA list were individuals who were expected to be interviewed and hired for certain positions within his department because of their political involvement, affiliation or work on certain political campaigns. Respondent graded interview score sheets in a way to ensure that those named on the IGA list scored highest and were guaranteed to receive the job.
The accused attorney is also charged with falsely certifying that he had complied with the decree. Perhaps these charges will provide some incentive to the bars that are investigating the politicization of hiring in the Department of Justice to pursue charges in those matters. (Mike Frisch)
September 8, 2008
Defeat And Rehabilitation
An attorney who had defaulted on charges of neglect of three matters and suspended for a year and a day was reinstated in Colorado. He had closed his law practice in 1987 after his election to the Denver City Council, where he served until 1995. He then was defeated in a campaign for city auditor: "[t]his defeat had profound emotional and professional effects on [him]." He opened a law office after the defeat. He had decided not to visit his father prior to surgery that the father was expected to survive because of practice demands and fell into depression. He defaulted in the bar disciplinary proceedings, advised the bar that he no longer wished to practice law, moved to California and supported himself by driving a taxi.
He has paid restitution and devoted himself to study for the California bar exam. He produced favorable testimony regarding his legal skills from a professor at the University of Washington Law School as well as medical/psychiatric testimony that he presently is fit to practice. Reinstatement was granted despite the argument that his failure to comply with court orders and rules in a timely fashion precluded the granting of his petition. (Mike Frisch)
Lulled Into Misconduct?
The Indiana Supreme Court issued a public reprimand of two attorneys, concluding that their advertisements for legal services constituted misconduct. The two partners had used two brochures to solicit clients: "When You Need a Lawyer" and "We Work for You." They had filed both of the publications with the Disciplinary Commission and were told that the commission did not give advisory opinions on targeted solicitation letters. The commission, as it sometimes does, did not provide the attorneys with any advice on the content of the brochures.
Here, the court found that the assertion of a "commitment to obtaining the best possible settlement, " descriptions of prior cases, and use of the phrase "Legal Advertisement" rather than "Advertising Material" violated Indiana attorney advertising rules. As to the lack of a warning or assistance from the commission: "reviewing every such letter, brochure, and other communication from every Indiana lawyer would be an impossible burden...[t] filing requirement also makes it possible for the Commission staff to spot at least some advertising materials that run afoul of the rules and to warn those lawyers of the need to correct the violations. We do not wish to discourage this service to the bar and to the public, even though it cannot extend to every lawyer communication filed with the Commission."
If these lawyers have the energy and ability to take this reprimand to the U.S. Supreme Court, I have little doubt that this sanction would not withstand constitutional scrutiny. (Mike Frisch)
A Second Bite?
The Maryland Court of Appeals disbarred an attorney for misconduct that had included false statements to a tribunal. The court acknowledged that the attorney's false statements were a result of his desire to aid his client rather than for personal gain, but nonetheless concluded that the ultimate sanction was appropriate. A finding that the attorney's dual role of counsel and real estate broker did not constitute a prohibited conflict of interest was upheld by the court.
The opinion notes that the attorney also is admitted in the District of Columbia. I'll wager that, if the attorney fights reciprocal discipline, it will take D.C. years to resolve the case (based on the well-established principle that D.C. considers Maryland's case law on dishonest lawyers as too harsh) and that a sanction less than disbarment will be the result. (Mike Frisch)
September 7, 2008
A White Limousine
The Illinois Review Board has proposed a suspension of eighteen months with a requirement that the attorney take the bar's professional responsibility institute course, but without a reinstatement proceeding, in a`matter involving misconduct that included a failure to disclose`an arrest in the bar admission process. The attorney had failed the bar exam four times and had passed on the fifth try. The problem:
On March 31, 1999, Bilal [the applicant/attorney] was arrested on charges of solicitation of a sex act. He did not disclose this incident on any of the materials he submitted to the Committee on Character and Fitness, including the Additional Questionnaire signed on April 29, 1999, one month after the incident.
On March 31, 1999, Cook County Sheriff’s Police Officer Kim Petrisha was working as an undercover prostitute decoy. About 12:45 a.m., a white limousine containing five men approached her. The men spoke with Petrisha about engaging in a sex act in return for money. Petrisha spoke with all the men. She testified that Bilal was one of them. Other officers arrested the five men. The charges against Bilal were ultimately dismissed.
Bilal denied having solicited sex from Petrisha. He also testified that, in his mind, he had not been arrested. After initiation of the disciplinary proceedings, Bilal obtained an order expunging the record of the incident.
The board also found misconduct, including a conflict of interest, that had taken place after admission. The board rejected the administrator's disbarment recommendation. (Mike Frisch)