February 5, 2008
Probation Sucessfully Completed
We have noted a few instances in the recent past where probation in bar discipline did not work. Well, sometimes it does. The Kansas Supreme Court discharged an attorney who had served a two-year supervised probation from further supervision, concluding that the attorney had fulfilled the obligations of the court-ordered supervision. The probation was imposed in lieu of a stayed suspension for one year. (Mike Frisch)
February 4, 2008
Accuse At Your Own Risk
An attorney who served as trial defense counsel in a criminal matter alleging two counts of custodial interference was alleged to have violated several ethics rules. His client was cross-examined by the state concerning an email between her and her former attorney. After the client was acquitted, the attorney moved for the trial court to conduct an inquiry into how the state had obtained and may have altered the document, asserting that the conduct violated the attorney-client privilege. The prosecutor filed an affidavit "asserting that he had received [the document] in its redacted version from [the client's] former husband..."
The trial court held that any privilege claim had been waived and that there was no valid basis to accuse the prosecutor of misconduct. The trial court found that the defense attorney had violated Rules of Professional Conduct 1.2, 3.1, 3.3 and 8.4. The Connecticut Appellate Court upheld the findings that the attorney violated Rules 3.1 and 3.3 but not 1.2 and 8.4. The court remanded for further proceedings on sanction in light of its conclusions.
The court states:
"Part of the plaintiff's original motion reasonably can be read to have implied that the state's attorney's office might have run afoul of legal and ethical norms. The plaintiff never presented a factual basis for a reasonable belief that a government entity had altered the email. Furthermore, when the prosecutor furnished the court an affidavit unequivocally disclaiming any role in the alteration of [the exhibit], the plaintiff immediately should have withdrawn any semblance of a claim...and he failed to do so."
The court concedes that the prosecutor had unknowingly submitted an altered document into evidence which, but for the client having kept a copy of the communication, could have caused a result contrary to justice: "[a]n attorney who, even inartfully, brings the introduction of an altered document to the attention of a court performs a service for the integrity of the judiciary." The Rule 1.2 and 8.4 violations were not sustained as a result.
A dissent in part would find the Rule 8.4 violation.
This case merits a close look. If it stands for the proposition that a claim of prosecutorial misconduct must be dropped in the face of the prosecutor's affidavit denying misconduct, I'd be concerned. (Mike Frisch)
The Maine Supreme Judicial Court held that the appeal of the denial of a motion to recuse a probate judge was frivolous, and imposed sanctions on the appellant. The matter involved an estate where the decedent had prepared and executed a will (in two languages) that left his estate to his three children in equal shares. One of the three produced and offered into probate and earlier, unexecuted will. That document made the child the sole heir.
The probate court rejected a motion to recuse, which was based on the fact that the judge had an outside practice. The court here found the motion frivolous as it was premised on nothing more than adverse rulings and the bare assertion that the judge had violated "each and every" canon of judicial conduct. (Mike Frisch)
A lawyer who made debit purchases from entrusted funds at The Wiz, BMW and All Own Parts Inc. was disbarred by the New York Appellate Division for the Second Judicial Department. The attorney also had paid school tuition for his child from escrowed funds. The court rejected claims of mitigation:
"The respondent asks this Court to consider the numerous character letters submitted by satisfied clients, as well as those submitted by religious and business leaders with whom he regularly comes in contact. He emphasizes the remedial and preventative measures he has put in place and insists that there is no admission or proof of knowing and willful misconduct. The respondent further asks this Court to note that no law school courses ever taught him the rules of ethics which he is now alleged to have violated. He claims that as a private practitioner, he has had no role models to follow. He asks this Court to consider the devastating effect that the loss of his law license would have upon his wife and children, who rely on him for ongoing support.
Notwithstanding the mitigation advanced and the respondent's claimed lack of venality, his arguments evince a fundamental ignorance of the disciplinary rules regarding proper maintenance of an escrow account. Throughout his testimony, the respondent claimed confusion and a faulty memory with respect to dates. This led the Special Referee to conclude that the respondent had a persistent lack of candor when confronted by the Grievance Committee. " (Mike Frisch)
Confidentiality And Collecting Fees
An article that appears on the web page of the Minnesota bar's disciplinary system (reprinted from The Minnesota Lawyer) opines that a recent change in the confidentiality rule does not impact on the ability of a lawyer to makes disclosures of otherwise protected information in order to collect a fee. The opinion does note an admonition imposed for a violation of the Minnesota rule:
"...a lawyer received an admonition for disclosing to his minor daughter that, in his words, he was working for 'deadbeat clients' who refused to pay their bills. The lawyer identified one client and the daughter wrote to the client lamenting that while most of her friends were packing their bags and flying on a plane to visit some wonderful vacation resort, she would be forced to stay at home over spring break because of his failure to pay her father’s bill. The lawyer then mailed this letter to the client. The lawyer received an admonition because the disclosure to his daughter and the letter were not a necessary means of establishing or collecting the fee."
A cardinal principle of Rule 1.6 is that disclosures adverse to the client must be strictly limited and no greater than necessary to achieve the lawyer's legitimate purpose. What was this lawyer thinking? (Mike Frisch)
The Ostrich Approach
An Ilinois hearing board has recommended a six-month and until further court order suspension of an attorney who neglected a client's visitation and child support case and thereafter failed to participate in the bar discipline proceeding:
"Because we did not have an opportunity to observe Respondent or hear an explanation for her conduct, we do not know why she failed to pursue [the clients'] case, or why she has not cooperated in these proceedings. Under these circumstances, a suspension until further order of Court is appropriate. See In re Houdek, 113 Ill.2d 323, 497 N.E.2d 1169 (1986) (lack of evidence that attorney was willing or able to meet professional standards of conduct in the future warrants a suspension until further order of the court). Given the evidence presented to us, and the fact that Respondent has not registered with the Commission since 2004, we conclude that she has little or no interest in continuing her legal career. If that position should change, she will have to demonstrate her reformation and commitment to the legal profession in a reinstatement proceeding."
This case illustates the worst possible approach to charges of misconduct. (Mike Frisch)
Ethics Journal Addresses Unmet Legal Needs
The Winter 2008 (Vol. XXI, No. 1) of the Georgetown Journal of Legal Ethics is now available. The focus of the issue is the legal profession's obligation to provide for the unmet legal needs of the poor. There is also a conversation on Law Firms, Ethics, and Equity Capital between Bruce MacEwan, Mitt Regan and Larry Ribstein that addresses non-equity investment in law firms, subject to regulatory oversight. Monroe Freedman, in Getting Honest About Client Perjury, takes the position that " when lawyers reveal client confidences because they feel compelled by Rule 3.3 to do so, their conduct violates the Fifth and Sixth Amendment to the Constitution."
The student editors are to be commended for their efforts and contribution to the discussion of significant and timely issues of professional responsibility. (Mike Frisch)
February 3, 2008
An attorney who failed to complete representation undertaken in two matters, one involving a divorce and the other a conservatorship where the ward had died, was suspended for three years.The Kansas Supreme Court adopted the recommendation to stay the suspension and place the attorney on probation for three years. The court concluded that probation was appropriate, quoting the findings of its hearing panel:
"the probation plan proposed by Respondent is workable, substantial, detailed and submitted in compliance with Rule 211(g). The Panel is mindful that Respondent sought a delay in the hearing to allow more time to prove that the probation plan was working as in place and that the extension was denied due to the difficulty in rescheduling the hearing. We have been impressed with the willingness of [the supervising attorney] to take on extensive supervision obligations over an extended term and with Dr. Lerner's testimony concerning Respondent's treatment and voluntary entry into a treatment program for depression before this proceeding. Moreover we credit the testimony of Respondent's fellow practitioners that Respondent provides valuable legal services in an underserved area of the administration of justice in his community."
The probation terms, among other provisions, prohibit the attorney from accepting civil cases and require him to return client phone calls within three days. (Mike Frisch)