October 3, 2008
The Wrong Approach
A reinstatement petition was denied by the Michigan Attorney Discipline Board. The petitioner had been suspended for eighteen months in 2003 for failure to perform legal services and charging a excessive fee. The decision is worth studying as a road map of the wrong approach to reinstatement if the object of the exercise is to get the license restored. I've seen some that had more to do with venting and accusing others (including the judges who entered the suspension order, never a`winning strategy) than proving fitness to practice. This case appears to fall into that category. Petitioner sought to relitigate the earlier misconduct case, portrayed herself as a victim, and papered the proceeding with over-the-top pleadings that attacked the bar prosecutor. The hearing panel found her unable to represent properly herself in the reinstatement process and concluded that she could not be trusted to represent others. The board affirmed. (Mike Frisch)
Contempt For Pursuing Discovery
The Arkansas Supreme Court upheld a contempt citation against an attorney who had filed suit on behalf of a client suing the Chancellor and President of the University of Arkansas for an alleged failure to properly investigate a campaign of email harassment against a student-athlete. The attorney had sought third-party discovery shortly after suit was filed. The suit was dismissed with an order that discovery cease. The attorney refiled the suit and continued efforts at discovery. The attorney was found to have violated the dismissal/stay order by pressing discovery and disclosing information obtained as a result to a newspaper. The court also rejected claims of bias on the part of the trial court against the attorney. (Mike Frisch)
Travel Without Permission
The Michigan Attorney Discipline Board imposed a one year suspension of an attorney who had violated court orders and testified dishonestly in court proceedings. He had been held in criminal contempt and sought to appeal the conviction. The board found "abundant" evidence that he had traveled out of state without court permission, as a real estate developer had testified that he met with the lawyer in San Diego. He then misled the court concerning the California trip. The arguments of the lawyer as to the misconduct and discipline were deemed to be meritless. (Mike Frisch)
Escrow Until Earned
The Iowa Supreme Court adopted a proposed public reprimand of an attorney who had charged an illegal fee and engaged in other misconduct in connection with the representation of a defendant in a drug case. He had agreed to a $7,500 fee if the case went to state court and $15,000 if prosecuted by the feds, but had no written retainer agreement. A $5,000 cash retainer was dropped off on a Friday, he claimed that he earned it over the weekend and treated it as his own on Monday. He treated an additional $2,500 cash payment in the same manner. The case went to federal court, where the client pleaded guilty.
The client filed a bar complaint and request for fee arbitration. The arbitration board determined that the lawyer had earned the $7,500. The complaint resulted in findings that the failure to escrow and account to the client merited a public reprimand. The lawyer appealed, claiming that his "flat fee" arrangement did not obligate him to escrow the fees. The court disagreed: "At the time the initial payment was received by [the lawyer], no fee had been earned. [He] cannot rely on his own interpretation that he had earned the advance fee by the time an opportune moment came to deposit the fee." Flat fees are earned when the services are completed and requires deposit into escrow. (Mike Frisch)
October 2, 2008
Voted Out Not Removed
A former justice court judge was reprimanded by the Mississippi Supreme Court. The judge was the subject of two complaints alleging that she had exceeded her authority in separate matters. The court sustained the conclusion of the Commission on Judicial Performance that one of the charges was not proven. Further, the commission's counsel cannot appeal that conclusion ("there is no provision in the [pertinent rules] which allows Commission Counsel to appeal the decision of his own client"). The other matter involved the repeated entry of unlawful orders that resulted in incarceration of a person for the non-existent crime of "peace bond."
The court would have removed the judge but the voters of Hinds County had already resolved the issue by voting her out of office or, as the court put it, "suffered defeat at the hands of the electorate." (Mike Frisch)
Uneven Road To Rehabilitation
The California Bar Journal reports:
[An attorney] was suspended for three years, stayed, placed on three years of probation with an actual two-year suspension and was ordered to prove her rehabilitation, take the MPRE and comply with rule 9.20. The order took effect May 22, 2008.
In 2003, [the attorney] was charged with felony embezzlement, grand theft and forgery for falsifying her time sheets while working for a school district. She claimed to have worked hours that she in fact did not work, improperly earning $6,000. She pleaded no contest to misdemeanor grand theft and stipulated in 2006 that the conviction involved moral turpitude.
The State Bar Court’s recommended discipline was postponed when [she] was admitted to the Alternative Discipline Program for attorneys with mental health or substance abuse issues. The court found that she suffered from a bipolar disorder and depression complicated by anxiety attacks and that there was a sufficient connection between her problems and the stipulated misconduct. It also considered as mitigation her claim that she acted on the insistence of her husband, from whom she is now divorced.
However, [she] was terminated from the program after testing positive for marijuana three times.
A new low in the collegiality wars
A friend of mine from Houston forwarded me this letter (here), which has to be a new low in collegiality. [Nancy Rapoport]
Third Time Is No Charm
The Connecticut Appellate Court affirmed the dismissal of a claim on statute of limitations grounds. The case arose out of a law firm's representation of a client in a foreclosure action. The alleged mishandling of the case resulted in a claim of legal malpractice against the law firm. The alleged mishandling of that case led to a lawsuit alleging legal malpractice against the lawyer retained to prosecute the malpractice case. Here, the second malpractice case was dismissed as untimely.
Is a fourth suit in the offing? Would it require proof of a case within a case within a case within a case? (Mike Frisch)
October 1, 2008
Go With The Flow
A Colorado district attorney was publicly censured in light of a conditional admission that she had "negligently failed to take adequate steps to ensure the free flow of information and materials between investigative personnel and [her] office sufficient to place in their possession or control all material relevant to the accused in a murder case." The lapse led to the "fail[ure] to disclose information in the possession of, and generated by, those who participated in the investigation and evaluation of the case."
A second district attorney also was publicly censured for the same misconduct. (Mike Frisch)
Probation For Intemperate Charges Against Court
The California Bar Journal reports the following disciplinary action against an attorney:
[The attorney] was suspended for one year, stayed, placed on one year of probation and was ordered to take the MPRE within a year. The order took effect May 4, 2008.
Koven stipulated that she failed to maintain the respect that is due the courts. She filed two petitions with the state court of appeal on behalf of a client, as well as a letter asking that the appellate justices recuse themselves on the ground of bias.
The request for recusal was quickly denied as frivolous, and both appeals also were denied. When Koven sought a rehearing, her petition contained numerous intemperate charges against the judges, including charges of bias, misrepresenting evidence and manipulating the outcome.
At one point, for instance, Koven wrote, “How convenient for this court to concoct a trumped up review of this issue that fits so snugly into its own predetermined perception of this litigant.” Elsewhere, she wrote, “. . . this court’s finding is a complete red herring. This court purposely concocted a flimsy excuse not to rule on the merits of this issue because it knew that to do so would have required it to reverse.”
Although Koven apologized to the court, admitting her statements were “improper” and “inexcusable,” she was found guilty of two counts of criminal contempt and fined $2,000.
In mitigation, she has no discipline record in 17 years of practice and she demonstrated remorse.
This is an example of a pleading that many of us have written and filed in the trash can rather than with the court. (Mike Frisch)
A former assistant state's attorney for Macon County Illinois has been charged with improperly soliciting and attempting to solicit criminal clients with whom he had had contact while employed in his public position. He is alleged to have approached seven defendants after resigning from the state's attorney office. Most did not retain him, according to the complaint filed by the Illinois Disciplinary Administrator. (Mike Frisch)
Hazards Of Flying First Class
An associate attorney of a law firm was sent from Chicago to Santa Ana, California for a deposition. He obtained economy class reservations for the flight from O'Hare. At the self-service kiosk, he inadvertently upgraded to first class, resulting in an additional charge of $260.02. He then sought reimbursement for the additional amount and made false statements to his firm's accounting department to get the money. Shortly thereafter, he admitted the false statements to a firm partner.
An Illinois hearing board has accepted a joint recommendation of the Administrator and the attorney and imposed a public reprimand for the misconduct. (Mike Frisch)
Effective today, the Maine Supreme Judicial Court has entered an order that bars law enforcement officers, probation officers, lawyers, juvenile caseworkers, and members of the public into the clerks offices of the Superior, District, and Supreme Judicial courts. The order also prohibits all non employees from access to the court's computer terminals except "any terminals that may be installed for information retrieval only."
Wonder if there is a backstory to this order. (Mike Frisch)
September 30, 2008
Posted by Jeff Lipshaw
If you want some sane commentary these days, try reading David Brooks in the New York Times. His column yesterday on the defeat of the bail-out bill was entitled "Revolt of the Nihilists." Here's a taste:
We’re living in an age when a vast excess of capital sloshes around the world fueling cycles of bubble and bust. When the capital floods into a sector or economy, it washes away sober business practices, and habits of discipline and self-denial. Then the money managers panic and it sloshes out, punishing the just and unjust alike.
What we need in this situation is authority. Not heavy-handed government regulation, but the steady and powerful hand of some public institutions that can guard against the corrupting influences of sloppy money and then prevent destructive contagions when the credit dries up.
Pet Death Results In Lawsuit
The Washington State Court of Appeals Division I has held that claims against a veterinarian arising out of the death of the plaintiff's pet are not governed by the medical malpractice statute and, thus, that claims other than professional negligence may be brought. The lawsuit was a result of the death of an apricot colored toy poodle named Ruby. (Mike Frisch)
"A Solemn Proceeding"
A judge was ordered to appear before the Florida Supreme Court for administration of a public reprimand. The sister of his former law partner was arrested for domestic battery against her husband.
Even though the matter was not assigned to him, [he] thereafter contacted the Broward County Sheriff's Office and authorized her release to the Pretrial Release Program without the benefit of a first appearance. [He] authorized the defendant's release notwithstanding the fact that she was currently serving a sentence of five years probation for obtaining controlled substances by fraud, thus making her ineligible for [release ].
The court noted that the judge acted without full knowledge of the alleged offense or the prior record of the defendant. The Judicial Code provision requiring integrity and impartiality "is not an aspirational principle but a clear and unequivocal mandate." The reprimand will be "administered before the entire Supreme Court in a solemn proceeding." (Mike Frisch)
Piercing The Corporate Veil In Ohio
The Ohio Supreme Court issued a decision today that modifies the court's position on piercing the corporate veil. The decision is summarized on the court's web page:
In a decision announced today, the Supreme Court of Ohio held that when a plaintiff pursuing a civil lawsuit against a corporation seeks to “pierce the corporate veil” (bypass the corporate structure and recover damages directly from a shareholder), the plaintiff must show that the shareholder used its control of the corporation “in such a manner as to commit fraud, an illegal act, or a similarly unlawful act.”
The 6-1 decision, written by Chief Justice Thomas J. Moyer, modified one part of a three-prong test for piercing the corporate veil this Court established in a 1993 decision, Belvedere Condominium Unit Owners’ Assn. v. R.E. Roark Cos. Inc. [See below for an explanation of the three-prong Belvedere test.] The effect of today’s ruling was to deny an attempt by Kimberly Dombroski, a policyholder whose claim for coverage was denied by Community Insurance Company (CIC), a wholly owned subsidiary of WellPoint Inc., to pursue recovery directly from WellPoint for her claimed physical and emotional injuries arising from alleged bad faith denial of coverage by CIC.
Breach Of Trust
An attorney who had accepted fees in cash that were due to her law firm but placed the fees in a personal account was suspended for two years by the South Carolina Supreme Court. She had been convicted of a breach of trust offense and placed on interim suspension as a result. The two years will begin to run from the date of the interim suspension. (Mike Frisch)
September 29, 2008
AALS Professional Responsibility Section Newsletter Is Fresh Off the Presses
Posted by Alan Childress
The AALS Section of Professional Responsibility puts out a quarterly newsletter that is a gold mine (and today gold is worth its weight in gold) for any professor, student, lawyer, judge, or citizen interested in issues of legal ethics. It is so substantively packed that we are once again grateful that they have allowed this blog to post it for the general public. Thanks to Widener's Randy Lee (its general editor) and all of the academic contributors who make it so useful, for this generosity. Try it here: Download AALSummer2008.pdf
Delay In Filing Charges Does Not Result In Dismissal
A hearing committee of the D.C. Board on Professional Responsibility recommends a 60 day suspension of an attorney who had engaged in extensive commingling, used his escrow account to shield his assets from creditors, and sent a letter that made false representations to the IRS. The committee rejected the contention that the matter should be dismissed for delay in bringing disciplinary charges, concluding that the attorney's ability to defend the allegations had not been impaired. The committee also rejected several serious charges; thus it is far more likely that any delay harmed the bar's case more than the defense of the attorney. It appears that the matter was docketed for investigation in 2002, judging by the case number. (Mike Frisch)