December 13, 2008
Until Further Court Order
An attorney who was found to have violated ethics rules in a series of matters was the subject of a proposed one-year suspension by an Illinois hearing board. The attorney had been previously disciplined for conversion, careless bookkeeping, neglect and three instances of misrepresentation. He opposed the suspension and sought a sanction of probation.
The review board recommended the the period of suspension be reduced to six months but that the suspension be imposed until further court order. The review board made the following crucial finding:
It is the opinion of both Dr. Henry and Dr. Hartman that Respondent suffers from depression and dementia that render him unfit to practice law, and that it is unlikely that his condition will improve. Respondent provided no evidence to refute their opinions. We conclude that a recommendation that did not advise that Respondent’s suspension should continue until further order of court would flagrantly ignore the purpose of these proceedings.
If it is unlikely that the condition will improve, it is unlikely that the lawyer will ever be reinstated if the recommendation is adopted. (Mike Frisch)
December 12, 2008
The Limits Of Zealous Advocacy
An order holding an attorney in a domestic relations matter in criminal contempt was reversed by the Tennessee Court of Appeals. The attorney allegedly had instructed her client to violate a trial court order awarding the adverse party two nights of overnight parenting every other week. The court here held that the order allegedly violated lacked the essential element of specificity--when the parenting time would occur--to sustain the conviction. Rather, the evidence suggested that the attorney had "vigorously challenge[d]" an oral order that she believed was invalid. The court viewed the conduct as zealous advocacy rather than criminal contempt.
The attorney, however, did not escape without criticism from the court. Her appellate brief had characterized the trial court actions as "lies" that were "calculated" and "illegal." The court chided her: "While [the attorney] has the right, indeed the duty to zealously represent her client in this matter, and herself in this appeal, her use of the brief to convey her contempt for the trial court is inexcusable." The court viewed the attacks on the trial court as "impertinent and unprofessional" and in a footnote stated that "...we decline to re-publish that which should never have been published by [the attorney]." (Mike Frisch)
Suspension For Judge Shopping
A lawyer who had been suspended for 45 days by a Michigan federal district court for judge shopping was suspended for the same period of time by the Michigan Attorney Discipline Board. The attorney had stipulated that the conduct had violated rules of the district court. I don't think I have seen a prior case involving discipline for such conduct (judge shopping, not violation of court rules). (Mike Frisch)
A Published Censure
An attorney was employed as a public defender and had practiced law during periods when his license had been suspended for failure to comply with annual registration requirements. He was permitted to resign when the problem was discovered and thereafter obtained reinstatement. After his resignation, the chief public defender found that he had failed to respond to over 200 telephone messages and to note appeals in two cases. The chief public defender filed a bar complaint and the lawyer failed to file a written response.
The lawyer was found to suffer from depression and "[t]hrough therapy and medication, [he] has made significant improvements." He presently is in good standing and serves as an appointed county attorney, which is not a full time position.
In the bar discipline case, the court accepted the Deputy Disciplinary Administrator's recommendation of a published censure with a requirement that he continue to participate in treatment for two years, with quarterly reports to the Disciplinary Administrator. (Mike Frisch)
Dangers Of Marrying A Lawyer
An Iowa attorney who practiced personal injury and workers' compensation law wished to marry his office manager and sought a premarital agreement protecting his assets for the benefit of children from an earlier marriage. He drafted an agreement and encouraged his intended to seek independent legal advice, which she did to a limited extent with a first but not a second draft of the proposed agreement.
On appeal of a determination that the agreement was unenforceable, the Iowa Supreme Court disagreed and reversed:
We are not persuaded that Randall's will was substituted for Teresa's own judgment in deciding to sign the agreement. The district court found Randall's position as a lawyer, and his status as Teresa's fiancee and employer, put Randall in such a position of power over Teresa that she was willing to put her full faith in his judgment in drafting the agreement. Despite the potential for abuse inherent in the parties' complex relationship, we find the evidence presented was insufficient to establish undue influence. Although Teresa testified that Randall subtly encouraged her not to take the second draft to an attorney, the district court found this testimony incredible. We credit the district court's credibility determination and find Randall encouraged Teresa to seek the advice of counsel as to both drafts of the agreement. The facts presented here simply do not demonstrate the improper or wrongful constraint, machination, or urgency of persuasion required for a finding of undue influence.
The court futher concluded that the agreement was not signed under duress or otherwise unconscionable. (Mike Frisch)
Procedural Error No Impediment To Discipline
Although it had found procedural error below, the Oregon Supreme Court nonetheless imposed a 120 day suspension in a matter involving ethical violations in the representation of two clients. The attorney had failed to answer the charges, which resulted in a default on the factual allegations. However, the trial panel did not make findings that the facts established the charged misconduct before moving to the sanctions phase of the hearing:
This case arises in an unusual posture. The Bar entered a default order against the accused because she did not answer the Bar's complaint. As a result of her default, the allegations in the complaint were deemed true. See Bar Rule (BR) 5.8(a); In re Magar, 337 Or 548, 551-53, 100 P3d 727 (2004). After the default order was entered, the Bar asked that a trial panel be appointed to determine the appropriate sanction. The Bar introduced documentary evidence at the hearing. The accused appeared at the beginning of the hearing. She made a short statement that she was sorry that her personal life had interfered with her practice and then left the room in tears.
After considering the evidence at the hearing, the trial panel did not determine whether the accused had committed the charged ethical violations. Rather, the trial panel appears to have assumed that the accused committed all the charged violations and limited its decision to determining the appropriate sanction. The panel suspended the accused from the practice of law for five months but stayed the suspension pending her completion of a year's probation. The Bar has petitioned for review of the trial panel's decision. It argues that the trial panel should have imposed a one-year suspension with no probation.
Because the court reviews the panel's conclusions de novo, a remand was not necessary. The court made its own findings concerning the charged violations and determined that a suspension of 120 was the appropriate discipline. (Mike Frisch)
Disbarment For Frivolous Suit
An attorney who had filed an action seeking $6.8 billion against a number of corporations, governmental entities and financial institutions alleging "theft, retention and sale of of artwork looted during the Holocaust" was disbarred by the New York Appellate Division for the First Judicial Department. A federal district court had dismissed the underlying case as " little more than an end run" around litigation that had been resolved in a comprehension settlement against Bank Austria.
The court here noted:
Judge Kram granted Bank Austria's motion to sanction respondent, finding that the lawsuit, being "entirely without color", was frivolous and in bad faith in violation of Rule 11. Judge Kram commented on, among other things, respondent's lack of preparation and professionalism, his "glaringly inadequate filings," and the fact that he deceived the court of "critical facts" concerning the previous class action settlement against Bank Austria in which he had substantially participated (2005 US Dist LEXIS 17411, *12). Judge Kram stated that the pleadings contained flagrant misrepresentations, that respondent falsely claimed that he was a member of the plaintiff organization AHVRAM, and that respondent attempted to circumvent the Bank Austria settlement. Judge Kram further noted that respondent, through AHVRAM, was prosecuting actions against at least six governments or entities, and stated that the findings were "bolstered by the fact that this case appears to be part of a pervasive and disturbing trend." (2005 US Dist LEXIS 17411, *18). Finally, Judge Kram stated that respondent engaged in champerty in violation of Judiciary Law § 488 and DR 5-103, based on her conclusion that respondent purchased interests in stolen artwork solely for the purpose of bringing lawsuits involving that artwork (2005 US Dist LEXIS 17411, *17). Judge Kram fined respondent $5,000 to be paid immediately to the court, and ordered him to pay his adversary's litigation costs and fees.
Respondent moved for reconsideration of and a stay of the court's rulings, which the court denied on November 17, 2005. The court further determined that respondent owed Bank Austria a total of $345,520.64 in litigation costs and expenses, and ordered him to immediately pay the $5,000 fine or post a bond. On December 1, 2005, judgment was entered against respondent and in favor of the defendant in the amount of $345,520.64. On January 13, 2006, the U.S. Court of Appeals issued a mandate dismissing respondent's appeal of Judge Kram's August 19, 2005 sanction order and deemed any pending motions moot.
The court had earlier granted an unopposed petition to accord collateral estoppel effect to the findings of the district court. A hearing panel in the disciplinary case found that the lawyer had made false submissions to the district court and had engaged in a pattern of misconduct.The court here agreed that the lawyer had known that the putative plaintiff in the case he had brought did not exist and that the relief sought had already been secured. (Mike Frisch)
December 11, 2008
A determination of the Tax Appeals Tribunal of the City of New York to deny tax deductions claimed by a law firm was affirmed by the New York Appellate Division for the First Judicial Department. The court held:
Petitioner law firm did not sustain its burden of establishing its entitlement to the specific deductions it claims. The payments to retired partners under the Optional Service Plan cannot be for goodwill, because section 13 of the partnership agreement expressly prohibits payments for goodwill. The Tax Appeals Tribunal's interpretation that the subject payments were for services rendered by the retiring partners is supported by substantial evidence and has a rational basis in the law. Petitioner's contention that the payments were made to compensate the retiring partners for their contribution to the intangible value of the firm is unavailing because a contribution to the intangible value of the firm has its basis in the doing of work and the performing of services. Further, the calculation of the payments to the retiring partners takes into account their earnings and years of services. Thus, the payments fit squarely within the plain language of Administrative Code § 11-507(3) ("No deduction shall be allowed . . . for amounts paid or incurred to a proprietor or partner for services or for use of capital").
Petitioner's federal tax deductible contributions to deferred compensation plans on behalf of active partners, while made not to the partners but directly to the plans, clearly are for the direct benefit of the partners and thus are also not deductible under Administrative Code § 11-507(3). (citations omitted)
Firm Partner Charged With Assaults On Employees
A complaint filed by the Illinois ARDC alleges in graphic detail charges of criminal assault and telephone harassment by a partner in an Illinois firm committed against a firm employee. With respect to that employee, it is alleged:
In January 2002, [the complainant] began employment as a legal assistant at the law office of Freed & Weiss, LLC, hereinafter ("the firm") where Respondent is a named partner. [Her] birthday is July 26, 1982. The highest level of education she had completed was high school.
Within the first week of [her] employment, Respondent brought her into a new office space, stood extremely close to her, and made a comment to her about wanting to kiss her. [She] refused Respondent’s suggestion.
Shortly after [she] began her employment at Respondent’s request, [she]agreed to go to a Chicago Bulls basketball game at the United Center with him.
Following the game, Respondent told [her] he would take her home. While still in the United Center parking lot, Respondent reached over to [her] and grabbed her upper thighs and attempted to reach her vagina. [She] pushed Respondent away and asked him to bring her home.
Respondent then pulled down his pants and asked [her]to "kiss it," referring to his penis. [She] exited Respondent’s car and went home alone.
During the period of her employment at the firm, Respondent on various occasions made sexually suggestive comments to [her]. On various occasions, Respondent also attempted to kiss [her] and touch her breasts and vagina over her clothing. When these incidents occurred, [she] asked Respondent not to touch her or say anything vulgar to her.
Between November 1, 2001 and July 28, 2001 [sic] while [she]was employed at the firm, Respondent called [her] cell phone on forty-nine occasions at various hours during the day and night. Respondent commented about [her] attractive appearance and things of a sexual nature that he wanted to do to her. Respondent made other comments that were obscene, lewd, lascivious and filthy or indecent with intent to offend. [She] would tell Respondent not to call her anymore. Instead of the calls ceasing, Respondent’s phone call became more persistent, forceful and inappropriate as time continued. Respondent asked [her] to talk dirty to him while he masturbated. [She]refused. She heard Respondent grunting and moaning during the calls. Respondent would tell [her]that he was masturbating. [She] repeatedly requested Respondent to cease making the telephone calls.
Respondent made the telephone calls outlined in [the] paragraph...above with the intent to abuse, threaten or harass [her].
In 2002, [she] requested an advance on her salary to pay her cell phone bill. Respondent gave [her] $300 and told her to consider it a loan, which she could pay back "in the flesh."
Between 2002 and 2003 on regular occasions, Respondent pushed [her] against a wall in an office, kiss her and grab her breasts. [She]told Respondent to stop and got away as quickly as she could. On one such occasion, Respondent told [her], "While I had sexual relations with my wife this morning, I was thinking about you."
At some time after January 7, 2003, Respondent cornered [her] while she was on her way to the office restroom. Respondent then forced [her] into a stairwell where he attempted to kiss her. Respondent grabbed [her] breasts, touched her vagina over her clothing and attempted to put his hand down her pants. When [she]resisted Respondent’s advances, Respondent exposed himself and masturbated until he ejaculated on the stairwell wall. During this incident, [she] repeatedly requested that he release her and stop what he was doing.
The complaint further alleges assault and battery on an associate attorney in the firm and an hourly employee, who is the sister of the person described in the above charges. It is alleged that the associate was terminated from her employment at the firm by means of a voice mail message left when she was out of the office. (Mike Frisch)
Unearned Fees Must Be Escrowed
The Washington Supreme Court imposed an eight month suspension and reprimand of an attorney who had been hired to defend a lawsuit. The attorney deposited the initial retainer of $1,000 in his business account rather than in an escrow account. The attorney claimed the payment was nonrefundable and that his standard retainer agreement contained a provision designating fee payments as nonrefundable. The hearing officer found that the client had not agreed to such an arrangement and had not signed or returned the fee agreement to the lawyer.
Shortly before trial, the lawyer demanded further payment of $2,500 on threat of withdrawl and deposited the resulting payment in the business account. The hearing officer found that the lawyer had not earned either payment on receipt and had thus violated ethics rules.
When the client filed a bar complaint and the bar sought billing records, the lawyer advised in response that an office burglary "resulted in the loss of the majority of his financial records." In the lawyer's appeal of the hearing officer's misconduct findings, the court concluded:
The burglary of Mr. Cramer's office renders his inability to produce a signed fee agreement inconclusive. It is possible that the burglar took the fee agreement along with the financial documents. However, the hearing officer heard the testimony of both parties and made the conclusion that Mr. Cramer gave Mr. Garcia a fee agreement for him to sign and return but that Mr. Garcia never did so. This is a reasonable explanation as to why Mr. Cramer does not have a signed fee agreement from Mr. Garcia. Based on Mr. Garcia's testimony, the absence of a signed fee agreement, and Mr. Cramer's inability to recollect other details of the initial meeting with Mr. Garcia, the hearing officer's finding that no agreement was reached is supported by substantial evidence.
The court rejected the lawyer's contention that his three instances of prior discipline should not be considered because of remoteness in time. The earlier sanctions were imposed in 1991 and 1994. The court agreed with the hearing officer that the presumptive sanction of an eight month suspension was appropriate. (Mike Frisch)
Beards And That Professional Look? The WSJ Weighs In
The WSJ life-and-style section today, in an article on facial hair, quotes our occasional guest-poster Kelly Lynn Anders of Washburn Law School on the subject of beards and professional appearance. She is against. Presumably those in the article that are for, mean men. At any rate, Kelly invites your replies and criticism of her view. I agree with her, fwiw. Do you? I wore one for 15 years to "look older" and hide the second chin, until I did not need to take extraordinary steps to look older and the jowls prevention project became a losing battle anyway.
Kelly's book The Organized Lawyer is now out.
Court Sanctions Lead To Bar Discipline
A lawyer who was found, in four separate instances, to have made false or friviolous assertions in litigation was suspended for one year by the New York Appellate Division for the Third Judicial Department. In each instance, the lawyer had been subject to court-imposed sanctions.
As to the disciplinary sanction, the court noted:
In mitigation, we have considered that respondent has no public disciplinary record and that his misconduct has already been punished to some extent by sanctions. However, we find that this record clearly shows that respondent has repeatedly crossed the line separating zealous advocacy from professional misconduct. Accordingly, we conclude that, to protect the public, deter similar misconduct, and preserve the reputation of the bar, respondent should be suspended from practice for a period of one year.
In one instance, the lawyer had accused a judge of participating in a criminal conspiracy to predetermine cases, mail fraud, regular impermissible exparte communications and conspiracy to tamper with court files. In another case, sanctioons had been imposed based on a judicial finding that the lawyer used "litigation to further 'his personal vendetta' against the Catholic Church." (Mike Frisch)
Falling Flag Litigation
Off topic again, but hard to resist is a decision earlier this week from the Tennessee Court of Appeals in a premises liability action brought for personal injuries sustained at a party on election night 2004 in the grand ballroom of the Hermitage Hotel in Nashville. The bash (excuse the pun) was hosted by the Tennessee Republican Party ("TRP"). A flag with attached wooden dowel draped over a landscape painting fell and struck the plaintiff on the head. He and his wife sued the hotel and later amended the complaint to add TRP as a defendant.
The TRP claimed that it had not requested that the landscape painting be covered; rather, TRP wanted only to cover the hanging portraits of Democratic Presidents Andrew Jackson, James K. Polk and Andrew Johnson. The hotel admitted that TRP had not sought to cover the painting from which the flag had fallen.
The court here reversed the grant of summary judgment to the hotel but directed dismissal of the claims against TRP as time barred. (Mike Frisch)
Too Late To Mitigate
The web page of the Ohio Supreme Court reports a decision imposing permanent disbarment:
In today’s 6-1 per curiam decision, the Supreme Court of Ohio adopted the findings and recommendation of the Board of Commissioners on Grievances & Discipline, which was forced to adjudicate the complaint filed against Lentes by means of default proceedings because he failed to respond to numerous letters and notices or to appear for a scheduled hearing.
Among multiple acts of misconduct, the Court found that Lentes repeatedly lied to his clients regarding the status of legal matters he claimed to have undertaken for them. On several occasions, Lentes had clients come to the courthouse and wait outside a courtroom while he made fictitious appearances at non-existent hearings. In one case, the Court noted that Lentes presented his client with a fictitious judgment entry on which he had forged the signature of Judge D. Dean Evans of the Gallia County Court of Common Pleas.
The Court rejected Lentes’ attempts to present evidence in mitigation of his violations after failing to appear at a hearing or otherwise cooperate with disciplinary proceedings. In determining that permanent disbarment was “the only appropriate sanction” for Lentes’ multiple acts of dishonesty and disregard of his responsibility to clients, the Court concluded: “Respondent’s dishonesty in his law practice, his lack of cooperation in the disciplinary process, and his repeated neglect of his clients’ legal matters demonstrate that he is not fit to practice law.”
Justice Paul E. Pfeifer entered a dissent stating that he would accept Lentes’ proffered resignation from the bar, or in the alternative would impose an indefinite license suspension rather than permanent disbarment as the appropriate sanction for Lentes’ misconduct.
The court's decision is linked here. (Mike Frisch)
Libby Disbarred In Pennsylvania
The web page of the Disciplinary Board of the Supreme Court of Pennsylvania reports that I. Lewis "Scooter" Libby was disbarred in that jurisdiction yesterday as reciprocal discipline based on his disbarment in the District of Columbia. The order of the Supreme Court has not been posted. (Mike Frisch)
An attorney who in 2002 had been declared severely mentally disabled and been involuntarily committed by the Court of Common Pleas of Allegheny County Pennsylvania was transferred to disability inactive status in that same year. He had been convicted of an array of criminal offenses including DUI, forgery, criminal trespass, tampering with public records, unsworn falsification to authorities, escape and criminal mischief. He is in the process of seeking reinstatement to the Pennsylvania Bar.
The Pennsylvania Supreme Court accepted a consent disposition of charges based on the criminal matters, consisting of a five-year suspension backdated to 2002. The proposed disposition of the Disciplinary Board (attached) notes that the attorney suffers from alcoholism, depression and bipolar disorder. An expert testified that these conditions were the "unfortunate platform" that led to the crimes. The attorney has been in alcohol recovery since 2004. By imposing the suspension as effective in 2002, this order appears to make the attorney eligible for reinstatement now. (Mike Frisch)
December 10, 2008
Association of Media & Entertainment Counsel (AMEC) Honors Law Professor
And the only law professor to be so honored is . . . our colleague Nancy Rapoport. (She of UNLV law school, Enron movie IMDB, and competitive ballroom dancing infamy.) The Association of Media and Entertainment Counsel, which recognizes the achievements of in-house legal counsel in the entertainment industry, has nominated its 2008 Counsel of the Year awards. Full list of nominees here. You have to like that one of the categories is Dealmaker of the Year. (Last year's winner was not the man who put together all the financing and talent pawns to resurrect Knight Rider, TV's only show this year where the pilot already jumped the shark.) In the category of Public Service, the nominees are Nancy and Prof. David Sherwyn of Cornell's Hospitality School. Congratulations to both, and let's hope that this category is not one of the awards they give off-camera at some half-filled hotel ballroom a week before they dole out the jazzy awards and inappropriate political speeches. Though if so, she's one of the few who could use the ballroom for its intended purpose. [Alan Childress]
A post today on the ABA Journal web page brought the site of the Pennsylvania Court of Judicial Discipline to my attention. As a result, I found an interesting case decided this May involving dismissed allegations of judicial misconduct against a Magisterial District Judge. The judge had been accused by an sanitary authority employee who worked in the same building of a series of inappropriate and undignified remarks, but the commission rejected the charges and noted that the employee had some workplace behavior issues as well:
While at work in the Nanticoke City Municipal Building, Maryann Kearney [the complainant] commonly used words such as “shit,” “bitch,” “ass,” “fuck”, the “F bomb” , “bite me,” “weird stuff,” “the Lord’s name in vain”, “the F-word and so forth”, “foul language”, “asshole,” the “F-word”, “shit,” “hell,” “son of a bitch,” “damn it.”
The employees who worked in the Nanticoke City Municipal Building belonged to a “Birthday Club.” Maryann Kearney was in charge of the Club and collected small amounts of money from the employees with which she purchased birthday cards for the employees including Respondent for delivery on their respective birthdays. These cards were passed around and signed by the employees and then given to the employee whose birthday it was.
Four birthday cards which were given to Respondent were introduced at trial. Each of these cards conveys a frankly sexual message with accompanying illustrations. Maryann Kearney selected each of these cards.
Maryann Kearney signed the card which is Respondent’s Exhibit 2 with the note “Happy Birthday to the 45 year old Monster.” The word “Monster” was Kearney’s reference to Respondent’s penis.
(citations to record omitted)
The commission noted that the atmosphere in the municipal building was very informal and relaxed, with dirty jokes and off-color language being a regular part of the workplace. The commission further found no ethical violation in the judge's employment as a fire truck operator and ordered all charges dismissed.
Question: is a magisterial district judge properly referred to as Your Majesty? (Mike Frisch)
Not Unethical By 5-4 Vote
The Arizona Disciplinary Commission, by a 5-4 vote, approved the dismissal of ethics charges in a matter that that we had earlier discussed. The attorney had (1) gone to a police station for an interview wearing a t-shirt that declared "Let the f***ing begin" (2) called a prosecutor an "unethical piece of trash" and (3) arranged for a subscription to Modern Drunkard magazine to be sent to a prosecutor's office due to his concern about the quality of the magazine choices in the waiting room. The magazines were not put out for general consumption. The hearing officer found the behavior inappropriate but not in violation of ethics rules. His report is attached to the commission's report.
The dissenters would have imposed an informal reprimand. (Mike Frisch)
Non-Compete Clause Upheld
In a case involving interpretation of Massachusetts Rule 5.6, the Supreme Judicial Court concluded:
In Pettingell v. Morrison, Mahoney & Miller, 426 Mass. 253, 256 (1997) (Pettingell ), we precluded the enforcement of a provision in the Morrison, Mahoney & Miller partnership agreement that "impose[d] adverse consequences on a withdrawing partner" who competed with the law firm. We precluded enforcement because the provision did not impose such adverse consequences on a withdrawing partner who did not compete with the firm. We concluded that the provision violated the public policy of protecting the rights of clients and potential clients to their choice of counsel, as embodied in S.J.C. Rule 3:07, Canon 2, DR 2-108(A), 382 Mass. 773 (1981), now Mass. R. Prof. C. 5.6, 426 Mass. 1411 (1998) (rule 5.6). [FN4] In this case, we must decide whether that firm's amended partnership agreement, which imposes identical financial consequences on all partners who voluntarily withdraw from the firm, regardless of whether they compete with the firm after withdrawing, also violates rule 5.6. We conclude that it does not. We also conclude that the plaintiffs' claim that Morrison Mahoney was collaterally estopped from contesting liability in this case was properly rejected.
The departing lawyers filed suit and had sought payment of their annual partnership interest credits, which had been withheld as a result of a "forfeiture-for-competition" provision applied to partners who had voluntarily withdrawn from the firm.
The case is Pierce & others v. Morrison Mahoney LLP, decided December 9, 2008. (Mike Frisch)