November 14, 2008
The Louisiana Supreme Court ordered the permanent disbarment for a variety of ethics violations that included a criminal conviction arising out his plea to 40 instances of theft, forgery and issuing worthless checks. The order indicates that the sentence in the criminal case was eight years of hard labor. (Mike Frisch)
Suing The Dead
A complaint and summons alleging legal malpractice filed after an attorney's death was properly dismissed, according to an opinion of the New York Appellate Division for the First Judicial Department:
Because there simply is no precedent nor any support in New York's Civil Practice Law and Rules for a court obtaining jurisdiction over an action "commenced" three months after the death of the individual named as the sole defendant, we find that the order appealed from is a nullity. The complaint should have been dismissed by the motion court as a nullity when the putative plaintiff, having filed a summons and complaint, discovered that the named defendant had died before the filing. As it is, this matter arrives before this Court as a result of a volume of errors rarely seen in this Department, and which are set forth below, seriatim.
In or around July 2005, Amin Marte, incarcerated and acting pro se, filed an unsigned, undated summons and complaint alleging legal malpractice by attorney Herman Graber. Thereafter, Marte discovered that Graber had died on April 2, 2005, approximately three months before the filing of the summons and complaint. Thus the action from its inception was a nullity since it is well established that the dead cannot be sued.
"A volume of errors rarely seen" may fairly be characterized as something less than a ringing endorsement of the court below. (Mike Frisch)
False Statement Conviction Results In Disbarment
A lawyer who had been convicted of violation of the federal false statement provisions of 18 U.S.C. section 1001 was summarily disbarred by the New York Appellate Division for the Second Judicial Department. The court held that the conviction involved a crime that was essentially similar to a felony under New York law. The facts:
...the respondent admitted that between June 23, 2000, and October 19, 2000, he owned and operated Port Abstract Title Company in Garden City and acted as closing agent for residential mortgages generated by The Neighborhood Mortgage Bank for New Jersey properties. During that time, the respondent loaned money to Barry Fauntleroy, the owner and operator of EON Real Estate investment company, to purchase dilapidated homes to sell at a profit. At the respondent's direction, employees of Port Abstract prepared HUD-1 Real Estate Settlement forms which contained materially false information for residential mortgage loans on the properties he and Fauntleroy owned and were selling. The respondent collected fees for the issuance of real estate title insurance policies, as well as for his work as a closing agent, associated with the sale of the properties.
At the respondent's direction, his employees created Real Estate Settlement HUD-1 forms which contained materially false information with respect to funds provided by the purchasers of properties he sold which were funded through mortgages generated by The Neighborhood Mortgage Bank. The respondent submitted these and other related documents to The Neighborhood Mortgage Bank for inclusion into the mortgage loan file which was submitted to HUD. The respondent knowingly took these actions for the purpose of inducing HUD to insure mortgages generated by The Neighborhood Mortgage Bank based on materially false and misleading information. The respondent received monetary compensation for his participation in this scheme. The respondent admitted that his actions were taken with intent to defraud and that he was, in fact, guilty as charged.
Computer Novice May Suffer Sanctions For Spoliation
An order declining to impose sanctions for spoliation of computer evidence was reversed by the Oklahoma Supreme Court. The trial court had applied the wrong standard in imposing sanctions against a plaintiff who had thereafter voluntarily dismissed the action. The plaintiff's story:
Plaintiff countered that he is a novice computer user who was having problems with his computer because it was severely infected with viruses, spyware and adware and that he sought professional help in correcting those problems. He first sought help from his friend, Dr. Olson, but Olson was not successful in fixing the computer problems. Barnett then hired a professional to repair his computer. Plaintiff maintained that at no time were evidentiary materials intentionally deleted from the computer and that the computer expert was using his expertise in determining what programs to run on the computer.
The record reflects that at least three kinds of "wiping" software were downloaded onto Barnett's computer during the period that Rock Oil was actively negotiating with Barnett's counsel to obtain the information contained on Barnett's hard drive. AbsoluteShield File Shredder was used on September 10, 2004 and a file named "cable.doc" was removed. On September 14, 2004, the programs CyberScrub 3.5 and Window Washer were installed on Barnett's computer and the Window Washer program ran several times on that date. The record reflects that the CyberScrub 3.5 program was last accessed on the same date that the motion to compel was granted by Judge Wiseman.
The court did not indicate its approval of the actions of the litigant:
In the case at bar, plaintiff was aware that his hard drive was the subject of a discovery request. The wiping software programs were downloaded on plaintiff's computer at a time when plaintiff's counsel and defense counsel were actively working to produce the hard drive for inspection. Then, after plaintiff had been ordered by the court to produce the hard drive for examination, plaintiff hired a computer expert to work on the computer, without informing defendants' counsel that he was about to have work done on the computer's hard drive. Neither did Barnett inform his hired computer expert that the hard drive was subject to a court order. The expert testified that he could have produced a "clone" of Barnett's hard drive before working on it, but that Barnett did not inform him that the hard drive was the subject of a court order.
The trial court had held that only willful violations were subject to sanction. (Mike Frisch)
Legal Ethics CLE in Denver Dec. 8 at the Ritz-Carlton and Near Skiing
The 13th annual Ethics CLE, called Ethics: Because It's More Than Just the Rules, is sponsored by CLE International. Up to 7 ethics hours are available. It is at the Ritz-Carlton in Denver 12/8/08. Home study is also available, but then you'd miss the snow. Or is it too early for that? Brochure pdf here. [Alan Childress]
Duty Of Candor
The Vermont Supreme Court denied the application for bar admission of an applicant with a history of criminal and financial responsibility issues. Of particular significance to the court were issues relating to the adequacy of the applicant disclosures concerning these problems in law school applications and in the bar's character and fitness process. The applicant had been denied admission in New York.
The applicant's testimony on the issue of the law school applications (the applicant had a j.d. and a master's degree)was summarized:
Regarding his lack of candor on his law school applications, he maintained that he never had any intent to be deceitful and explained that once he became aware that he had a duty to disclose items, he did so immediately. Applicant explained that he thought his juvenile record was sealed and not subject to disclosure on his J.D. application. Further, he asserted that he disclosed his convictions after he learned that he was required to provide the law school with that information. Upon questioning, applicant was unclear about whether he had forgotten about his juvenile convictions or simply thought that he was not required to disclose them. He also did not provide an explanation for why he made a late disclosure of one juvenile infraction, but not of the others. Applicant admitted that he realized he was required to disclose a conditional discharge and therefore disclosed his harassment conviction, but maintained that the bad-check conviction was not required to be disclosed because he remembered that the matter was dismissed, even though the paperwork revealed otherwise.
Concerning his LL.M. application, applicant testified that an employee at American advised him that he was not required to disclose his juvenile convictions. He also opined that he was not required to reveal his administrative probation at Cooley because the question asked only about academic and conduct probation. Applicant sought to admit a recent letter from a dean at the law school, indicating that the school would not have required disclosure of administrative probation or juvenile convictions, but the Commissioner excluded the letter as hearsay.
The court emphasized the duty to full candor:
Overall, while some of applicant’s answers may have, in some quibbling sense, been correct, they were certainly not complete, nor were they in keeping with his affirmation at the end of the application that he had answered all questions “fully and frankly.” What applicant fails to comprehend is that in answering questions about his past, the best response is the one that most fully answers the question. Evasive or incomplete answers, although arguably not incorrect, do not fulfill an applicant’s responsibility to be truthful and honest. Nor do such answers give us confidence in the applicant’s ability to be honest and trustworthy in the practice of law. See V.R.A.B. § 11(b)(1) (stating that process of screening applicants for good moral character is to exclude individuals who have demonstrated “dishonesty or lack of trustworthiness in carrying out responsibilities”). Each of these instances of nondisclosure individually might not compel us to conclude that applicant lacks good moral character. In the aggregate, however, applicant’s repeated nondisclosure of his past, and his continuing insistence that he has acted properly, do not give us confidence that applicant understands the importance of honesty or the gravity of his behavior.
Whatever a court's reaction to pre- bar application issues in terms of the evaluation of the applicant's character, a lack of candor and acceptance of responsibility in the admission process is invariably fatal to the application. I am a bit troubled by the rejection of evidence from a law school regarding its interpretation of disclosure obligations on its admission application. (Mike Frisch)
November 13, 2008
Fleeing Police Nets Lenghty Suspension
The web page of the Virginia State Bar reports the following disciplinary action:
On September 26, 2008, the Virginia State Bar Disciplinary Board suspended [an attorney's] license to practice law for one year and one day. [The attorney] was found guilty on June 7, 2008, in Augusta County Circuit Court of eluding police in a vehicle. On August 29, 2008, the board summarily suspended her law license pending the disciplinary hearing.
Reprimand Equals Censure
An attorney who had been reprimanded in New Jersey was censured by the New York Appellate Division for the First Judicial Department. The court concluded that censure was the equivalent of a New Jeresy reprimand and thus imposed that sanction as reciprocal discipline. (Mike Frisch)
No Liberty Interest
Not a legal profession case, but an interesting decision from the West Virginia Supreme Court reversed a trial court judgment that declared unconstitutional the procedure to challenge the decision of the referee of a high school basketball game calling a second technical foul and ejecting a player. The player then had laid hands on the ref. The physical contact led to an additional suspension. The court declared:
Not only do we find it unwise to proceed down the path suggested by the trial court _ inviting courts to review an official's judgment call in assessing technical fouls _ but the foundational underpinnings upon which the trial court based its rulings on the issue of due process are fatally flawed. In making its ruling, the lower court overlooked this Court's recognition over twenty years ago that “[p]articipation in interscholastic athletics or other nonacademic extracurricular activities does not rise to the level of a constitutionally protected 'property' or 'liberty' interest.'” Bailey v. Truby, 174 W.Va. 8, 21, 321 S.E.2d 302, 316 (1984) (quoting Clarke v. Board of Regents, 166 W.Va. 702, 279 S.E.2d 169 (1975)). Because there is no property or liberty interest that attaches to extracurricular activities, “procedural due process protections” do not apply. Truby, 174 W.Va. at 21, 321 S.E.2d at 316.
The player had sought and been granted an injunction against the suspension. He is not your everyday high school basketball player, as he currently is playing in the NBA. (Mike Frisch)
Representing Buyer And Seller Leads To Bar Complaint
A complaint filed by the Illinois ARDC charges an attorney with a conflict of interest in representing both the buyer and seller in a real estate transaction. The fee charged to the buyers (who had initially retained the lawyer) was $400; the seller paid $175. According to the complaint, a dispute arose between buyer and seller: the lawyer had agreed to hold a $900 check for the purchase of items by the buyer that included a freezer. As of the filing of the bar charges, the dispute remains unresolved. The freezer remains in the house. (Mike Frisch)
November 12, 2008
Acts Of Lewdness
The Oklahoma Supreme Court accepted the resignation and ordered the disbarment of an attorney who had been charged with, among other things, second degree rape and forcible oral sodomy. The attorney pleaded guilty to two counts of offering to engage in acts of lewdness and was sentenced to 365 days imprisonment. NewsOK has a report about the arrest that mentions that the attorney had represented the defendant a high profile case involving a wife convicted of murdering her husband. According to the report:
A report by Oklahoma City police Sgt. Ben Lacaze says Miskovsky rented a room with a hot tub at The Best Western Broadway Inn & Suites, 6101 N Santa Fe Ave., on April 22. The girl's relative, Lorie Michelle Toney, drove her to meet Miskovsky at the room the following night where the attorney offered the girl whiskey and wine before paying $150 for sex, according to the report.
The report states Miskovsky paid $160 on May 1 for oral sex when Toney delivered the girl to Miskovsky's home.
The girl admitted to the sex acts with Miskovsky during police interviews, according to the report. Police were tipped off when the girl's father filed a police report. The girl said she was never given any of the money.
Reversal for Improper Cross-Examination
The Maryland Court of Appeals reversed a criminal conviction, finding error in the cross-examination of the defendant concerning the timing and content of his conversations with his attorney. The court held that the claim had been preserved and that the error was not harmless. (Mike Frisch)
Ineffective Hold Harmless Agreement
An attorney who acknowledged that she may not have provided competent representation in connection with real estate closings was reprimanded by the South Carolina Supreme Court. The court's order recites the key facts:
Respondent represents that, at the closing, she advised Clients that she was neither representing Clients nor Countrywide. Respondent further explained to Clients that she did not examine the title to the property, that she did not prepare any of the closing documents, that she would not be supervising the disbursement of funds or the recording of documents, and that Clients could request the services of an attorney of their choice at their own expense to review the documents and/or attend the closing. After making these oral disclosures to Clients, respondent presented a document entitled “Hold Harmless Agreement” to Clients. Clients executed the document. Prior to the closing, Clients had no notice that the execution of the Hold Harmless Agreement would be a condition to proceeding with the closing and Clients did not consult with independent legal counsel. Respondent now recognizes that she was the closing attorney for the transaction involving Clients and she owed certain duties and responsibilities to Clients, in spite of the Hold Harmless Agreement executed by Clients.
The attorney was fully cooperative in the bar's investigation. (Mike Frisch)
November 11, 2008
Posted by Jeff Lipshaw (not Bill Henderson, but my name sits right below his on the left)
Brian Leiter has provided a link to his post from a year ago about when candidates should expect to hear from schools with whom they interviewed this past weekend in Washington. I looked at the post and realized that I had commented twice, and they were worthy of being brought into the full light of bloggicity.
First, I speculated that callbacks were a front-end loaded curve. Brian's observation that you COULD get a call late is accurate, but the likelihood is low. Here's a guess on call distribution: 20% before the weekend is over; 70% by the end of the first week after the conference; 90% in two weeks.
Second, here is my "Person/Unperson" theory having never sat on an Appointments Committee, but having done interviews and hiring in other contexts for over 25 years. From the standpoint of the Appointments Committee, there is likely the A team, the B team, and the C team. The A team hears within two weeks about in the time sequence described above. The C team ought to get a brief "it was nice but no thanks" within a couple days, and more often than not it doesn't. The B team gets radio silence because it is the B team, which means it isn't the C team, and apparently somebody thinks it has a chance of moving up to the A team.
From the candidate's standpoint, the rationalization/self-deception progression goes as follows: (1) "I'm still on somebody's A team, but their committee is not going to do call backs until January;" (2) "I am still on somebody's B team," (3) "I am lower than dirt, and please call me in April when I have uncurled from the fetal position."
The A team fantasy will disappear on its own sometime between the conclusion of the Rose Bowl and the kickoff of the BCS Championship Game. The real issue is the "still on the B team fantasy." I'd bet dimes to dollars that if we looked at it in the macro, there actually is no pure B team person. Rather there are "Persons" and "Unpersons." (I can't remember: do I give credit to George Orwell for that?) That is to say, a real B teamer would be on SOMEBODY'S A team, and hence a Person. If you are on everybody's B team (and hence without callbacks), you are really an Unperson. I believe that was my experience in 2005.
Alcohol Problems Lead To Practice Problems
The Pennsylvania Supreme Court has approved a two-year consent suspension, retroactive to a previously imposed interim suspension, of an attorney who had appeared in court in a state of intoxication to represent a client scheduled to plead guilty in a criminal case. The judge ordered a breatherizer test that resulted in a blood alcohol level of .123 . The attorney was held in contempt and sentenced to six months. After his release, he was charged with parole violations and a conservator was appointed for him. There also were issues relating to the operation of his escrow account as well as a series of client complaints. (Mike Frisch)
An attorney who had been suspended as a result of a conviction for causing a death while driving drunk was reinstated with conditions by the South Carolina Supreme Court. He had served 7 1/2 years of a prison sentence. The Office of Disciplinary Counsel had opposed reinstatement in light of the seriousness of the offense. The court concluded:
...petitioner acknowledged the seriousness of his misconduct and the fact that drug and alcohol addiction was an underlying component. He further acknowledged his misconduct resulted in an innocent victim losing her life. He expressed deep regret and sorrow for the victim’s loss of her life, and at the hearing before the Committee he stated the accident and the consequences of it to the victim and her family are with him every day. Petitioner stated there are no words to describe the remorse he feels, and although he wishes he could change what occurred, he understands there is nothing he can do except learn from the past and try to be a better person. We note in this regard that the victim’s mother, who petitioner corresponded with while in prison, informed the local media that she does not oppose petitioner’s reinstatement and has expressed to petitioner her desire that he return to the practice of law.
Gambling With The License To Practice
The South Carolina Supreme Court reprimanded an attorney for engaging in illegal gambling. The attorney had resigned his position as a deputy solicitor in the wake of criminal charges:
Respondent has been thoroughly cooperative with ODC throughout the course of this investigation. Respondent recognizes and admits that gambling of any kind is illegal in South Carolina and that his conduct was improper. Respondent acknowledges that his pattern of repeated gambling violations, especially given his position as Deputy Solicitor, indicated an indifference to his legal obligations as a member of the Bar. Although he represents that he never maliciously or intentionally intended for his actions to subject himself, his office, or his profession to the negative publicity that his conduct caused, respondent acknowledges that he is responsible for the consequences which have ensued since April 4, 2008.
November 10, 2008
Getting Personal Leads To Reprimand
The Connecticut Appellate Court affirmed the reprimand of an attorney who had accused opposing counsel in a domestic relations matter of having an affair and fathering a child with the client that opposing counsel represented. Even if true, the allegations served no legitimate purpose:
Both motions contain allegations that the wife’s attorney in the dissolution action, who was married to another woman, and the wife were having an ‘‘illicit and extramarital relationship.’’ The plaintiff further alleged that a child had been illegitimately conceived from this relationship, which later led to marriage. The wife’s attorney served a request for a retraction on the plaintiff to alert him of inaccuracies in the motion, including the date he married his new wife, along with the birth date of the alleged illegitimate child. Additionally, the wife’s attorney filed two grievances against the plaintiff. After a hearing, a reviewing committee of the statewide grievance committee found the plaintiff to have violated rule 3.1 of the Rules of Professional Conduct and imposed a reprimand. The reviewing committee wrote in its decision that even though there was a basis for filing the motions, the inclusion of the allegations of a sexual affair and describing the couple’s child as illegitimate were unnecessary to the merits of the motions, and, due to the nature of the allegations, the committee inferred that the allegations were made only to embarrass, harass or maliciously injure those involved and were therefore frivolous. The plaintiff appealed to the Superior Court, which dismissed the appeal. The plaintiff then appealed to this court. The plaintiff, on his client’s behalf, filed postdissolution motions to disqualify the firm representing the wife and for a continuance.
The New York Commission on Judicial Discipline imposed a censure of a judge who had accepted a guilty plea and imposed on jail sentence on an intoxicated and incompetent criminal defendant. A dissent finds the sanction insufficient:
In my universe, what’s good for the goose is good for the gander. Respondent’s lawless and reactive abuse of power was at least as profoundly aberrant as Justice Blackburne’s and had more severe consequences. A young man spent 60 days in jail absent due process in this case. By contrast, no one suffered, other than from a one day shock of public outrage, from Justice Blackburne’s misconduct. To me, punishing an individual absent due process is far worse than setting free a suspect absent due process. Consequences mean something. Appearances, though extremely important, should not drive our decisions. Here, I am afraid an incident of extremely serious abuse of power with profound consequences to its victim is being implicitly tolerated by too much leniency. Respondent should be removed because he is unfit to serve as a judge. Therefore, I dissent.
Malpractice Claim Against Criminal Defense Counsel Improperly Dismissed
The dismissal of a legal malpractice action brought by a criminal defendant was reversed by the New Hampshire Supreme Court. The court determined that a previous case holding that the defendant must prove actual innocence in order to establish malpractice did not apply under the circumstances:
...we conclude that in this case, where the alleged legal malpractice occurred after the plea and sentencing, where the claim is unrelated to any strategic or tactical decision relating to the plaintiff’s convictions, and where the plaintiff does not argue that but for his attorney’s negligence he would have obtained a different result in the criminal case, the legal malpractice action is not barred by Mahoney. Accordingly, we reverse the trial court’s grant of the defendant’s motion to dismiss, and remand for further proceedings consistent with this opinion.
The defendant had alleged that his lawyer had filed a motion to withdraw his plea without authorization. (Mike Frisch)