December 26, 2008
Reciprocal Censure For Violations In Pro Hac Vice Motion
An attorney who had accepted a censure in Montana for misconduct in connection with a motion for pro hac vice admission to a Montana federal court was reciprocally disciplined by the New York appellate Division for the Second Judicial Department. The New York court rejected a variety of challenges to the imposition of the identical sanction:
The respondent's argument is that none of these charges would be worthy of the imposition of discipline in New York. In his view, his admitted violations were ministerial and technical and would not warrant punishment if charged in New York.
Based upon the evidence adduced, the defenses advanced by the respondent are without merit. The respondent was not deprived of due process in the Montana proceeding in which he was represented by able counsel and had ample opportunity to be heard and to present evidence in his own defense. He participated in the investigation and was fully apprised of the ramifications of his stipulation.
Nor was there such an infirmity of proof establishing the misconduct as to give rise to a clear conviction that this Court, consistent with its duties, could not accept the findings of the Montana court as final. The terms of the Tendered Conditional Admission and Affidavit of Consent are clear. Although he was not yet an admitted attorney in Montana, the respondent was an experienced New York attorney who could not persuasively argue that he was ignorant of the importance of that writing. Notwithstanding the respondent's categorization of his violations as ministerial and technical, he nevertheless made material misrepresentations to a court of law, even if by omission.
The attorney testified in the New York proceeding that he had accepted the Montana sanction by stipulation because his lawyer had advised him that he would "never...do better" if he contested the charges. (Mike Frisch)
Charges Not Proven
In a case where the Administrator had charged an attorney with ethics violations for failure to disclose a material fact in representing a client in a real estate transaction, the Illinois Review Board agreed with a hearing board conclusion that the charges had not been proven and set out its standard of review of such a no-misconduct finding:
...in seeking to have the Review Board overturn the Hearing Board’s factual findings of no misconduct, the Administrator faces an extremely high two-pronged burden. First, the Administrator must convince the Review Board that, in its opinion, he proved the misconduct charged by clear and convincing evidence. Second, he must establish that, despite the Hearing Board’s determination that such a burden was not met, the opposite conclusion is clearly evident.
This two-fold difficult burden should be contrasted to that of a respondent who challenges Hearing Board findings of misconduct. A respondent has no burden to prove anything, let alone by a clear and convincing standard. A respondent who challenges factual findings on review must establish only that the Hearing Board’s factual findings are against the manifest weight of the evidence.
In this case, the Administrator’s arguments at best demonstrate that certain circumstances raise suspicion. However, suspicious circumstances are not sufficient to meet the Administrator’s burden of proof. Winthrop, 219 Ill. 2d at 550, 848 N.E.2d 961, 302 Ill. Dec. 397. That an opposite conclusion is possible, but not clearly evident, does not allow for a reversal of the Hearing Board’s factual findings. Winthrop, 219 Ill. 2d at 542-43, 848 N.E.2d 961, 302 Ill. Dec. 397.
Based on the facts presented in this case, the Hearing Board found that the Administrator did not prove, by clear and convincing evidence, that [the attorney]acted with an intent to deceive or that his conduct rose to the level of an ethical violation. That finding is not against the manifest weight of the evidence. As the Hearing Board noted, this decision should not be taken as approval of a failure to highlight significant changes in documents sent to opposing counsel. However, as this case demonstrates, every failure of counsel to highlight significant document changes does not involve the violation of a rule of professional conduct.
December 25, 2008
Law Firm Cannot Recover Fees For Representing Itself
In a case arising from a corporate receivership and dissolution action from which a law firm had withdrawn when it had been joined as a defendant, the Nevada Supreme Court held:
These consolidated matters arise from an action in which a law firm sought to recover attorney fees incurred for its representation of a corporation in a separate receivership and dissolution action. The district court awarded the requested fees; approved the law firm’s garnishment and directed the corporation’s receiver to pay the firm out of the receivership funds; and awarded the firm additional fees under the offer of judgment protocol. The corporation has appealed from the attorney fees judgment and post-judgment order, and the receiver has appealed from the court’s order on garnishment.
As a threshold matter, the firm challenges this court’s jurisdiction to consider the receiver’s appeal, asserting that the receiver was not a party below and that he was not aggrieved by the district court’s order on garnishment. Having considered the parties’ jurisdictional arguments, we conclude that we have jurisdiction over the receiver’s appeal because the court’s order constituted a final judgment in the garnishment proceeding, and since the order was rendered against the receiver, who was the garnishee defendant in that proceeding, he is an aggrieved party entitled to appeal.
As for the merits of the parties’ appeals, we address whether the failure to pursue a claim under the receivership claims process necessarily precludes the recovery of attorney fees outside of the receivership court. We also address whether fees are appropriate when a firm represents both the corporation and its majority shareholder and president, as well as whether the firm can recover fees for representing itself in the separate attorney fees action.
We conclude that claims for attorney fees incurred in a receivership and dissolution action can be liquidated in a separate action. The court in that separate action, however, has no jurisdiction to levy on receivership funds without the receivership court’s permission. Accordingly, as we conclude that no conflict of interest barred recovery here, we affirm the district court’s judgment liquidating the firm’s attorney fees. We reverse, however, the district court’s orders concerning garnishment and disbursement of receivership funds. Finally, we conclude that a law firm cannot recover fees for representing itself, and we therefore reverse the post-judgment order awarding attorney fees.
December 24, 2008
Employee's Unauthorized Practice Draws Reprimand
In an interesting bar discipline case, the Nevada Supreme Court imposed a public reprimand on an attorney for assisting in the violation of unauthorized practice rules as a result of conduct by his employee who was admitted to practice only in Arizona but located in the attorney's Nevada office:
Our prior precedent and authority from other jurisdictions support the conclusion that what constitutes the practice of law must be determined on a case-by-case basis, bearing in mind the overarching principle that the practice of law is involved when the activity requires the exercise of judgment in applying general legal knowledge to a client’s specific problem. When the person engaged in the activity is a lawyer licensed in another state, we must also consider whether that activity may be permissible under Nevada’s limited exceptions for multijurisdictional practice, when the activity is limited and incidental to the lawyer’s representation of clients in his home state.
Here, consideration of the key principle—exercise of legal judgment on a client’s behalf, together with ample authority from other jurisdictions faced with similar facts, demonstrates that Lerner’s employee without doubt engaged in the practice of law. Also, the employee worked in Lerner’s Las Vegas office for Nevada clients, so he was not engaged in limited, incidental, multijurisdictional practice related to his representation of clients in Arizona, where he is licensed. Consequently, the employee’s practice of law was unauthorized. The employee’s activities were further performed as part of his regular duties, in conformity with the policies and practices of Lerner’s firm, and thus, Lerner assisted in the unauthorized practice of law. We therefore conclude that clear and convincing evidence supports the violation of RPC 5.5. We further agree with the hearing panel’s recommendation of a public reprimand as the appropriate discipline.
The employee met with potential clients, determined whether or not the firm would take the case , negotiated claims and was the client's sole contact at the firm. The court notes that the attorney sanctioned here had been the subject of three prior non-public reprimands for the identical conduct. (Mike Frisch)
An attorney who had been subject to a stayed five-year suspension in Pennsylvania for submitting 34 false claims for air travel to his law firm received an identical sanction from the New York Appellate Division for the Third Judicial Department. The court imposed reciprocal discipline, noting that the Pennsylvania disposition had been premised on a finding that the misconduct had been substantially caused by a psychiatric condition for which the attorney is receiving treatment. (Mike Frisch)
Immigration Attorney Disbarred
An attorney who had engaged in misconduct in a series of immigration matters was disbarred by the North Dakota Supreme Court. The attorney had charged a "nonrefundable" fee and failed to perform the services and had practiced while suspended for nonpayment of bar dues, as well as mishandling the immigration matters. He had also made false statements to a client and did not respond to the disciplinary charges. (Mike Frisch)
Coin Of The Realm
An attorney was disbarred by the District of Columbia Court of Appeals for serious dishonesty and related misconduct in his dealings with a business partner with whom he had a romantic relationship. The attorney was found to have drafted legal documents that listed only his name on joint ventures and made a series of false statements about the situation, including testimony under oath in an arbitration and the disciplinary hearing. After losing the arbitration, he filed a meritless appeal that caused the California Court of Appeal "to verbally chastise him for 'blatant misrepresentation' of one of the court's rulings..." ("If a reputation for honesty is the coin of the judicial realm, [the attorney] has squandered his riches on such positions most unwisely").
His criminal conduct (proven without a conviction) was found to amount to theft. He also engaged in "unconscionable actions in the courts, especially the California courts." Disbarment was appropriate even though he had no prior disciplinary history, as he had engaged in "persistent, protracted,and extremely serious and flagrant acts of dishonesty." Reinstatement is conditioned on full restitution to the Clients' Security Fund with interest and satisfaction of all judgments "against him and in favor of [the partner] or related business entities."
According to the court's opinion, the attorney was admitted in the District of Columbia in 1995 and "[e]ventually,...moved to Virginia and accepted a post as a professor of law at Regent University." (Mike Frisch)
December 23, 2008
Headline of the Day From Skidding Denver Jet
Odd bumping noise heard on Denver plane's tape
...That would have been the kid behind me kicking my seat back, and bringing my seat back forward.
One of my brothers is a pilot for American and was visiting my school one day, having lunch with lots of us law profs. An occupational hazard for him is that everyone immediately decides to tell their personal airplane inconvenience or near-miss stories. (Just like how we ethics profs always seem to 'invite' stories of outrageous lawyer conduct, or even such urban myths as the guy who got trapped robbing a house, was forced to eat dog food, and sued!) Each law prof duly told my brother their tale of airplane horror, and he listened attentively, till one prof ended the conversation by apologizing for subjecting him to all the scare stories about flying. My brother just replied, "That's OK. I'm afraid of lawyers."
One of his best airport inconvenience stories is the time that TSA confiscated his nail clippers while he was obviously on the way to a fly a plane full of passengers. Like he could not bring the plane down if he wanted to, even without those clippers. [Alan Childress]
The New York Appellate Division for the First Judicial Department has suspended Marc Dreier:
The evidence gathered by the SEC and the United States Attorney's Office, and the sworn declarations annexed to the Committee's motion, none of which are controverted, relate that respondent was engaged in a fraudulent scheme to sell investors fictitious promissory notes, for a profit of over $100 million; and converted tens of millions of dollars from the Dreier LLP escrow accounts.
This Court has consistently held that an attorney who converts funds should be immediately suspended, prior to the conclusion of the disciplinary proceeding. The sheer magnitude of the alleged conversion in this case, and the fact that some of the acts in furtherance thereof allegedly took place while respondent was in a Canadian prison are cause for great public concern.
Alaska Bar Seeks Suspension Of Senator Stevens
ANCHORAGE - The Alaska Bar Association says that U.S. Sen. Ted Stevens' plea to keep his law license is based on a faulty reading of the rules and a mischaracterization of the seriousness of his conviction for lying on his Senate disclosure forms.
The bar, in a pleading filed this week, urged the Alaska Supreme Court to reject Stevens' arguments that he wasn't really convicted and that his crime was not a crime under Alaska law. The association said that even as an "inactive" member of the bar, Stevens is a danger to the public and an embarrassment to the legal profession.
The state bar initially sought a suspension of Stevens' license shortly after his conviction Oct. 27. Stevens opposed the suspension in a pleading to the state Supreme Court, which regulates attorneys in Alaska. His license has already been suspended in two other jurisdictions, California and Washington, D.C.
"The public is entitled to the assurance that a member who commits a felony or a serious crime will be identified as a suspended member of the Bar Association pending final disposition of any appeal of the conviction and the disciplinary proceedings based on that conviction," the association said. "By a jury verdict finding him guilty of seven federal felonies, (Stevens) breached the responsibilities of his public office and his professional responsibility to the public, the legal system and the legal profession in Alaska."
The Florida Supreme Court has issued a public reprimand of a district court of appeal judge for issuing a concurring opinion that was "motivated by ill will...and personally attack[ed] another judge of the court]." The reprimanded judge had "expressed a strong dislike of [the other judge] that predated the [case at issue]."
The court concluded:
Judge Allen accused a fellow appellate judge of judicial corruption based on unverified facts that came from outside the record and were not part of the...case. Although Judge Allen asserts that he wrote the opinion simply to explain why he voted in favor of an en banc consideration, we find that [he] went beyond this explanation and launched an unnecessary personal attack on Judge Kahn based on his dislike for him...it is obvious from the language of the opinion that his animus towards Judge Kahn played a significant part in his decision to write the opinion.
The court rejected the contention that the doctrine of judicial independence precluded any sanction and ordered that the judge "appear before this Court for the administration of [the sanction]..." (Mike Frisch)
Suspension For Growing Marijuana
The Wisconsin Supreme Court has imposed a 90 day suspension for the below-described criminal conduct:
The criminal conduct at issue involved two separate incidents in Illinois and Wisconsin. Illinois police conducted a search of Attorney Radcliffe's vehicle and discovered marijuana, drug paraphernalia, and hydroponics supplies. Illinois authorities then contacted Wisconsin authorities who obtained a warrant to search Attorney Radcliffe's Wisconsin home. The Clark County, Wisconsin, sheriff's department discovered marijuana plants and supplies used to grow marijuana. On September 27, 2007, Attorney Radcliffe pled guilty in the Clark County circuit court case to one count of manufacturing a controlled substance, a Class H felony. Two related misdemeanor charges were dismissed on motion of the prosecutor.
The court accepted a consent disposition and noted that there have been a "wide array" of sanctions imposed for misconduct involving drugs. (Mike Frisch)
Disbarred By Default
An attorney who had been suspended in May for failing to respond to complaints against him was disbarred by the New York Appellate Division for the Second Judicial Department:
The petition contains one charge of professional misconduct alleging that the respondent failed to cooperate with three investigations into allegations of his professional misconduct. Notwithstanding efforts to effect service upon the respondent as authorized by this Court in the order to show cause dated January 17, 2008, the respondent has failed to file an answer as directed by the Court's decision and order on motion dated March 27, 2008. Accordingly, he is in default and the charge against him must be deemed established.
The Grievance Committee thereupon moves for an order adjudicating the respondent in default, deeming the charge established, and directing that the respondent, a suspended attorney, be disciplined upon the charge set forth in the petition. Although served with this motion by mailing copies to the three aforementioned residences and affixing copies to the front door of each of those premises, the respondent failed to reply.
Significantly, the respondent failed to submit any opposition to the Grievance Committee's earlier motion, inter alia, to suspend him. He is, thus, in default.
Accordingly, the Grievance Committee's motion is granted, the charge contained in the petition is deemed established and, effective immediately, the respondent is disbarred and his name is stricken from the roll of attorneys and counselors-at-law.
December 22, 2008
Life After Suspension
The Ohio Board of Commissioners on Grievances and Discipline has issued an advisory opinion concerning the employment limitations of a disqualified or suspended attorney. The web page of the Supreme Court summarizes the opinion as follows:
Opinion 2008-7 covers the employment of a disqualified or suspended attorney and what work that person can perform. The opinion notes that a Supreme Court rule limiting the employment of a disqualified or suspended attorney by another attorney or law firm became effective Sept. 1. Among other restrictions, the rule prohibits a disqualified or suspended attorney from direct client contact or handling client funds. A client must be notified in writing in advance if a disqualified/suspended attorney will perform any work for another attorney on a client’s case.
A disqualified/suspended attorney serving as a receptionist does not violate the restriction on direct client contact, according to the opinion, as long as the contact is limited. The opinion also states that limiting the duties of the disqualified/suspended attorney to serving as a receptionist, mail room clerk, copying services or filing pleadings in court would not invoke the requirement of notifying clients that he or she worked on a client’s case. Performing legal research and writing on client matters, however, would require notifying the client.
JAG Officer Reprimanded
An Arkansas Committee on Professional Conduct panel issued a consent reprimand to an Army captain with the Judge Advocate General's Corps who self-reported that the Department of the Army had charged him with adultery, dereliction of duty and a false official statement. An Army investigation had found he had engaged in sexual relations with a legal assistance client and made knowingly false statements. He had been suspended from practice in the military courts, even as a civilian lawyer, and his separation from the service has been recommended.
The decision does not conclude that adultery violates the Arkansas disciplinary rules. (Mike Frisch)
An Important But Limited Role
An attorney was reprimanded in a Maine matter with a "complicated and protracted history [that] began in October 1998 with a complaint to the Board of Bar Overseers..." The complaint came from the opposing party of a divorce client and had been stayed for approximately seven years while the divorce was pending. When the bar proceedings got going, the client objected to a proposed consent resolution of her complaint. She claimed that the bar disciplinary process had "chosen to ignore most of her complaints concerning [the attorney]" and filed a motion to intervene. She demanded that independent counsel undertake a review of her concerns.
The Maine Supreme Judicial Court held that the complainant was a non-party with an important but limited role, analogous to the victim in a criminal matter. As such, the motion to intervene was denied. The court accepted the agreed-upon sanction as the lawyer had "engaged in conduct, although short-lived, that was effectively, a misrepresentation...He did not with sufficient promptitude correct information but rather participated in the continuation of false evidence, which left unclarified and misleading pleadings before the Court. " (Mike Frisch)
Fifth Circuit Upholds $14M Judgment Against N.O. Prosecutors' Office For Brady Violation In Capital Case: A Million For Every Year In Prison, And A Deathbed Confession By The ADA Just Before Execution
Posted by Alan Childress
This eye-catching summary [and link to Friday's opinion on the U.S. Fifth Circuit website] by Robert McKnight, appellate practitioner and publisher of the Fifth Circuit Civil News and its daily updates:
Thompson v. Connick, No. 07-30443 (5th Cir. Dec. 19, 2008) (King, Stewart and Prado): A jury awarded $14M in compensatory damages on finding, in a case under 42 U.S.C. § 1983, that the district attorney's office in New Orleans precipitated, by deliberate indifference to its obligation to train employees on their obligations under Brady v. Maryland, a failure to provide exculpatory blood-typing evidence from an armed robbery for which the plaintiff was convicted in April 1985. The same prosecutors accurately predicted that the April 1985 conviction would dissuade Thompson from testifying on his own behalf (in order to avoid impeachment with the conviction) in his trial a month later for a different armed robbery that ended in a murder. Thompson was convicted in the second trial and was sentenced to death. "Eighteen years later -- and one month before [Thompson's] scheduled execution -- Thompson's investigators uncovered the exculpatory evidence that indisputably cleared [him] of the armed robbery charge." The murder conviction was also set aside, on the ground that the prosecutors' misconduct deprived Thompson of his right to testify at that trial. When retried for the murder, Thompson was acquitted. The district court added about $1M in attorney's to the jury verdict, and denied the defendants' post-judgment motions. Holding: Affirmed for the most part. Among other holdings in a 48-page opinion, the Court held that Thompson's claim was not time-barred, that sufficient evidence supported the jury's verdict, that the withholding of evidence was not the unanticipated action of a single rogue prosecutor, that the jury instructions (and an answer to a jury question) on deliberate indifference were adequate, that the damages were not excessive, and that the fee award (which was half of what Thompson's counsel asked for) was not an abuse of discretion.
The only reversal was on the district court's erroneously naming of several individual defendants in the judgment, including former DA Harry Connick (yes, the father of the crooner). One eye-popping fact repeated from page 2 of Judge Prado's opinion is well worth adding to the list within Andy Perlman's excellent summary of our faith in the death penalty system:
Eighteen years later—and one month before his scheduled
execution—Thompson’s investigators uncovered the exculpatory evidence that
indisputably cleared Thompson of the armed robbery charge. Thompson was
then retried for the murder and found not guilty.
The Times-Picayune news story on the case also reports that "Thompson's defense team learned that the prosecutor, an assistant to former District Attorney Harry Connick, confessed while dying of cancer that he had suppressed the lab report." Luckily, and before that, "a month before his last scheduled execution date, an investigator found a piece of microfiche containing a 1985 lab report that indicated he could not have committed an attempted armed robbery for which he had been convicted before his trial in Liuzza's slaying." After this research find, a friend of the deceased ADA reported to defense attorneys the ADA's confession and executed an exculpatory affidavit, about five years late.
Update 2: McKnight tells me that the dying ADA's friend and former coworker eventually received a public reprimand for his own failure to properly report the confession (he should have reported it timely to the court, not years later and just to the DA and defense counsel). Actually it was a barroom, not deathbed, confession. And the ADA had not himself properly reported the Brady violation at all before he died in 1994, so my characterization of it as a deathbed confession [as if he really fixed the situation he created] was unduly charitable. Here is the 2005 discipline opinion on the friend, by the Louisiana Supreme Court.
ALI-ABA Ethics Hour on Negotiations Jan. 15, 2009 By Webcast or Telephone
ALI-ABA programs are usually considered quite good. Here is one, The Ethics of Negotiation, available nationwide Thurs., 1/15/09 at 1:00 eas.; accredited or potentially so in 41 listed states. Live via audio web or phone. Speakers are here, tuition is $149, and 1 or 1.2 CLE ethics hrs. accrue. [Alan Childress]
Sex With Client Draws Proposed Suspension
An Arizona hearing officer has recommended a 60 day suspension followed by probation where an attorney had "engaged in a sexual affair" with a client he had been retained to represent in defending a civil matter brought by her former partner. The hearing officer accepted a consent agreement and concluded the "the affair...did not result in any prejudice to the legal interests of [the client], the opposing party, the court, or any other affected person or entity."
Four prior cases, all of which seem to involve unwelcome comments or advances, are cited for proportionality purposes. There is no indication in the findings of fact that the affair here was anything other than consensual. (Mike Frisch)
December 21, 2008
We are 96 out of 100, Yay
Posted by Alan Childress
In the internet voting for the ABA's Top 100 Law Blogs of 2008, we sit currently at 96th. Even all the blogs in the Quirky category are hammering us. Please do not vote [here] for our blog, before Jan. 2, as there is something humiliating about being 96th that, ironically, would earn sweet countercultural redemption if we become the actual last place, 100th.
It is a little like how the person graduating last in his or her class from the U.S. military academies gets a dollar from all the other grads, but being nearly dead-last gets nada (except having that fact mentioned a lot if one runs for president a half century later). Or how very unpopular politicians now go around citing their unpopularity as some proof that history will redeem them -- somehow, counterintuitively, the long-term redemption is more likely if one is anathema or toxic now. (As if a basic tenet of democracy, that people's views of a politician predict his or her abilities and competence, is necessarily nonsense.) Anyway, if our readers succeed in making us 100th, it is inevitable that history will judge us well, via the Truman effect. Thank you.