Monday, September 22, 2008
An attorney was publicly reprimanded by the Louisiana Supreme Court notwithstanding his failure to object to the disciplinary board's proposed suspension of one year and one day with six months deferred. The court had directed the parties "on [its] own motion" to address the sanction issue. The attorney had charged a 50% contingency fee in an accident case where the client had been at fault. The agreement "permitted [him] to charge additional fees if additional legal services were required." The lawyer was found to have charged an unreasonable fee by charging $2,000 to issue two settlement disbursement checks and a $166 fee for paralegal services. He also failed to disburse the remaining amounts to his client, who was elderly, vulnerable and had to hire counsel to get her share.
The reprimand also requires the attorney to pay restitution of the $2,000 as well as the paralegal and attorney fees for the second lawyer. Three justices dissented and would impose harsher discipline. (Mike Frisch)
At least if the bank is one under FDIC insurance protection, its demand deposit accounts called Money Market Accounts are still protected up to the FDIC $100,000+ cap, just like any savings or checking account. So say several websites (like this) including the official FDIC one. The volatility widely reported last week as to "money markets" -- and efforts to cobble together an FDIC-like protection for "money market funds" -- actually meant those funds (or "money market mutual funds") that are not accounts in FDIC banks. Of course some mutual funds, including those tracking the money markets, are sold by banks. I am referring to demand deposit accounts, still FDIC protected even if called money market. Maybe the media should be clearer on this before they cause a run on very safe accounts with similar names. [Alan Childress]
A welcome to blogging, and to the Law Prof network of blogging, is extended to the new Native American Law Blog. It is edited by Professors Timothy Pleasant and Deena DeGenova of Kaplan's Concord Law School, and already has several posts. [Alan Childress]
Not a legal profession case, but worthy of note, is a decision today from the New Jersey Supreme Court reversing the grant of summary judgment in favor of the defendant in a defamation and tortious interference case. Plaintiff runs a boardwalk arcade game in Wildwood. Defendant owned a nearby competitor and was alleged to have had his employees broadcast over a public address system that plaintiff was "dishonest" and a "crook" who "ran away and screwed all of his customers in Seaside." The Appellate Division concluded that the "actual malice" standard applied and affirmed the trial court's summary judgment order.
The court here rejected the actual malice standard:
This was not a case of disinterested investigative news reporting. Defendants' employees were basically scaring plaintiff's customers away. Their speech was not more highly valued because they charged a rival with consumer fraud rather than a peccadillo. In a competitive market, it cannot be that the bigger the lie the more the free speech protection for the publisher of the lie
The fact that the boardwalk games industry is "highly regulated" did not alter the result. (Mike Frisch)
The beauty, humor, and frustration of university teaching, as years fly by, is nicely captured in math prof Manil Suri's "X = 50 Semesters." It is part of the NY Times Sunday Magazine's roundup of education (in which legal education is underexamined). Hat Tip to Devan Desai in his concurring opinions post on the magazine issue. [Alan Childress]
A law firm that had been sued by a former client for a conflict of interest produced internal firm documents such as billing records, financial statements and policy manuals that disclosed the firm's conflicts checking procedures. A protective order was entered requiring that the documents would be returned at the conclusion of the litigation. The matter then was settled.
Two years later, the firm was again sued for legal malpractice by the same lawyers who had handled the earlier case. The defendant firm claimed a breach of the protective order. The trial court found no breach and declined to hold the lawyers in contempt.
On appeal, the South Carolina Supreme Court reversed, holding that the law firm's continued possession of the policy manual violated the protective order and breached the settlement agreement. Thus, the trial court erred in declining to hold the lawyers in contempt:
In the instant case, the trial court’s conclusion that Bland and Richter did not willfully violate the protective order is without evidentiary support. Leaving aside the question of whether Bland and Richter’s initial possession of the policy manual was intentional, Bland and Richter both testified at trial that upon discovering the wrongfully retained copies of the policy manual, they recalled immediately that there was a protective order in place which required the return or destruction of the documents. Bland and Richter have not disputed that they knew that confidential documents from the Myrick litigation were not to be used in any other litigation, and in this vein, the trial court’s conclusion that there was no willful violation of the protective order is not supported by the evidence.
The court declined to consider whether the use of testimonials on the law firm's web site and in their office display constituted a contempt as the issue had not been preserved for appeal. (Mike Frisch)
The New York Appellate Division for the Second Judicial Department imposed suspensions of six months in companion matters involving a partner and an associate of a Nassau County law firm. The misconduct involved a series of false affirmations filed in litigation. As described in the order suspending the associate:
In or about 2004, the respondent, in his capacity as an associate at a Nassau County law firm (hereinafter the law firm), filed affirmations in seven actions pending in the District Court, Suffolk County, Third District, before Judge Toni A. Bean, under the caption MZ Dental, P.C. v Progressive Northeastern Ins. Co. The plaintiffs, represented by the law firm, moved for summary judgment in each of those actions, which involved the assignment of first-party no-fault benefits. The defendants cross-moved for summary judgment and to disqualify attorney Edward Shapiro under the witness-advocate rule on the ground that he, a member of the law firm, would have to testify in order to establish a material element of each plaintiff's causes of action. Each motion submitted by the law firm contained an affirmation averring that the plaintiffs' no-fault claims were personally mailed by attorney Edward Shapiro on a particular day. The affirmations were submitted to establish timely mailing of each plaintiff's claim. The respondent's affirmations in opposition to that branch of the defendants' motion which was to disqualify Shapi
As a result of a hearing held on November 19, 2004, dissimilarities were found in the signature of the respondent on various papers filed with the court. The respondent admitted that on at least two occasions, he had instructed someone in the law firm to sign his name to documents which required his attestation.
In an order dated December 23, 2004, Judge Bean found that the actions of Edward Shapiro and the respondent in submitting the fraudulent signatures constituted part of a pattern of deceptive practices. The court ruled that Edward Shapiro's failure to sign the affirmations nullified the plaintiffs' motions for summary judgment and required their denial. The court found the conduct of Edward Shapiro and the respondent to be frivolous, pursuant to 22 NYCRR 130-1.2, in that they demonstrated an intent to deceive the court and their adversaries, and imposed a total sanction in the sum of $35,000.
Sunday, September 21, 2008
An attorney who had been admitted to practice in 2003 was disbarred by the Indiana Supreme Court. The misconduct took place between 2003 and 2007, involving 15 counts of client-related violations and an additional charge of "general incompetence." The attorney had failed to participate in the disciplinary proceedings. The court quoted with approval the conclusion of the hearing officer that the "magnitude of the misconduct was... hard to fathom." In one matter, the lawyer had accepted a $10,000 fee to represent a client in connection with a murder charge in Illinois (where she was not admitted) and falsely told the bar that she had diligently sought pro hac vice admission. (Mike Frisch)