Monday, October 20, 2008
The South Carolina Supreme Court rejected an appeal for a harsher sanction by Disciplinary Counsel and imposed an indefinite suspension in a case involving three client matters. The attorney had been in partnership with her husband, who was placed on interim suspension in 1999. Each of the client matters were taken over by the lawyer although the husband continued to have some involvement. the court here rejected findings below that the lawyer engaged in an improper business transaction with a client and assisted his unauthorized practice of law. Her communication with her husband concerning the status of a case was not unauthorized practice.
As to mitigation:
we note that respondent’s mother died tragically and unexpectedly in 1999 as respondent was administering CPR. Respondent testified that her mother’s death caused her to feel great grief and guilt, which persisted well after the event and contributed to her decision-making. Also in 1999, shortly after the death of her mother, Husband was placed on interim suspension from the practice of law. Respondent found herself solely responsible for their law practice and responsible for having to provide for her two special needs children. Respondent testified that the period of time in which the two events occurred constituted a very traumatic time in her life. Her misconduct occurred close in time to these events.
The court agreed with the panel that, under the circumstances, no harsher sanction was appropriate. (Mike Frisch)
The full Massachusetts Supreme Judicial Court affirmed the denial of admission to a bar applicant. The "most troubling" incident in his background related to his efforts to collect a debt:
According to the complaint submitted by the attorney, Desy worked as an independent contractor for a company run by the attorney's family. The company, apparently due to financial difficulties, failed to pay Desy in a timely manner for all of his work. Desy commenced actions in small claims proceedings and prevailed, obtaining money judgments against the company. Subsequently, by electronic mail (e-mail) to the company's principal manager dated December 9, 2003, Desy claimed (falsely) to have attached property belonging to the company and to the manager, threatened to have the property seized, threatened to have trustee process served on the company's customers, and threatened to have the manager's wife and daughter arrested. One of the e-mail messages specifically threatened to have the manager's wife arrested at 6 A.M. on Christmas Day or on another holiday. In fact, Desy had not commenced any process for collection of the judgments. The falsehood, the baseless threats, and the timing of these messages--Desy was then a law student about to submit an application for admission to the bar, see note 1, supra--reflect poorly on Desy's character. When he was interviewed by special counsel about this matter, he asserted evasively that he did not remember exactly what he had written, but acknowledged that he did "rant and rave." In his brief to this court, Desy does not address this matter.
The court found that the character testimony presented by the applicant was unhelpful and that the "threatening and harassing e-mail messages, strongly suggest dishonesty, poor judgment, and a willingness to misuse the judicial process." The full court also rejected the applicant's legal attacks on the proceedings of the Board of Bar Examiners.
If the link does not work, the case is Desy v. Board of Bar Examiners, SJC-10069, decided today. (Mike Frisch)
One of the recurring issues faced by bar prosecutors relates to the timing of disciplinary charges. Particularly in client neglect situations, the complaints tend to trickle in to bar counsel over a period of time. When charges are brought, all complaints that have resulted in charges are joined together for a single hearing. What if meritorious complaints come in after charges have been heard? This problem can mean that the same attorney may be the subject of a series of separate charges over an extended period of time, with each proceeding generating a sanction.
An example that brings this issue to mind is a recent decision by the Pennsylvania Supreme Court, suspending an attorney for one year and one day for neglect of two client matters. The attorney had been subject to two warnings and a prior three month suspension. This order will now require the attorney to petition for reinstatement and prove fitness to practice. Complaints that trickle in now will likely be held for consideration if and when the lawyer seeks restoration to active practice. (Mike Frisch)