February 23, 2008
Change Of Lifestyle Merits Probation
The Illinois Review Board recently recommended a stayed suspension of two years and five years of probation with conditions for two instances of misconduct in the lawyer's personal life. The first involved an altercation between the attorney and his ex-wife's brother-in-law. The fight, which related to a custody order, took place outside of a bar where the two had been drinking heavily and watching the 2003 Super Bowl. The second incident involved his refusal to allow a former girlfriend access to her property, and also took place after the attorney had watched a football game. The former girlfriend obtained an order of protection as a result.
The attorney was diagnosed with bipolar disorder, but the expert testimony suggested that the conduct was a product of the attorney's consumption of alcohol. The review board found evidence of positive change in the attorney's life:
"In the spring of 2005, it appeared that Respondent had undertaken a profound re-examination of his life. He decided that he needed to change his lifestyle. He attended five sessions related to anger management. He joined the "Y" and began running and exercising. He began taking nutritional supplements and eating well. His friend was a gourmet cook, and Respondent became one. When he saw Dr. Jeckel [at the direction of the Administrator]in August 2005, he was still drinking two or three drinks once or twice a week. By the time he saw Dr. Artal in June 2006, he was drinking only occasionally. At the time of the hearing, Respondent had stopped drinking and had lost 110 pounds. He was working very hard at being physically fit."
The attorney has not practiced for several years and is teaching in a paralegal program: "evaluations by his students were positive." (Mike Frisch)
Brooke Shields Gave $2300 to Obama in Feb. 07: Nosey Site Lets You Track Names, $, and a Street-Level Map of Political Donors
I am not sure I am happy I stumbled on this Huffington donation list site, and feel like it is close to violating the spirit of NAACP v. Button, which said that you can join an organization without fear the government will get a membership list of your actual name. But the obvious difference is that donating to a presidential candidate under common-cause notions of full disclosure is a public act and is disclosed.
Well, privacy fans may not like the fact that collating that data is so easy and public. And that it is presented via a street address map (?!) with pushpins to tell everyone where you live, how much you gave, and to whom. You can even search by common occupations such as attorney or actor (doctors seem to like Ron Paul). My wife, Morgan Fairchild, seems not to have contributed this year or last, joining Abe Vigoda. Of the four Fred Thompsons who donated, sadly only one (an attorney/lobbyist from Brentwood, Tennessee) gave to Fred Thompson ($1000). Michael Frisch, well the one who is a summer associate/student in Chicago, gave $315 to Obama early enough in the campaign (4/07) that he is not some bandwagon guy. In that Frisch guy's 60614 zip code, $2,015,882 was given: $231,391 to Republicans, and $1,784,491 to Dems. All duly identified, mapped and pushpinned with names and locations inside 60614.
Cass Sunstein also gave to Obama, before moving to Harvard. Almost all Posners gave to Dems, none of the contributors also named Richard. Brooke Shield's L.A. zip code in Hollywood off Sunset (I assume an office, unless she has one of those dated apartments near the Armenian bakeshops) only gave a million and a half, less than by that Chicago guy's zip. So much for Hollywood's influence. That zip, 90046, does tilt heavily Democratic, though. Arnold Schwarzenegger may be endorsing McCain, but Arnold is yet to be listed as having parted any Hollywood money with the man (from any zip code). Renee Zellweger gave $4600 to Hillary, and her 90048 zip on Wilshire Blvd only gave 350K, with 295K to Dems.
The cautionary tale: at the very least, make it geographically real when you say you gave at the office. Smart, Brooke. Or use a PO Box like Fred Thompson did.
The site, http://fundrace.huffingtonpost.com/, asks
Want to know if a celebrity is playing both sides of the fence? Whether that new guy you're seeing is actually a Republican or just dresses like one?
FundRace makes it easy to search by name or address to see which presidential candidates your friends, family, co-workers, and neighbors are contributing to. Or you can see if your favorite celebrity is putting money where their mouth is.
Lawyers Have to Take Seriously Their Occasional Roles as Jurors
Much like the judge who decided two cases by coin-toss (Mike's Nov. 07 story here), a lawyer who voted as a juror, it seems, based on expedience and not on the merits is in big trouble. The ABA Journal online newsletter has the story of a California attorney who served on a med mal jury, as Vote to End Jury Deadlock May Cost Attorney His Law License. A Cal state judge recommends disbarment. The lesson is clear: even conduct that may be relatively common for laypersons -- I am assuming that occasional jurors change votes by impatience or feeling a need to work rather than on the evidence as they see it -- is serious misconduct for officers of the court, even when they are not acting in the role of attorney (though no doubt the peeved fellow jurors were even more disappointed with him because he was a lawyer too). This has got to be a cautionary tale for those of us, all of us, who will serve on juries. [Alan Childress]
Threats No Basis To Disqualify Prosecutor
The Rhode Island Supreme Court upheld the imposition of a life sentence without possibility of parole in a "heinous and horrific case of domestic abuse that resulted in the execution-style murder of a wife and beloved mother of three children." The court rejected the claim on appeal that one of the two prosecutors should have been disqualified due to threats from the defendant: "Requiring the prosecutor to be disqualified merely because defendant allegedly threatened her life would provide defendants an incentive to engage in such unlawful conduct." The court also held that a claim of ineffective assistance of counsel based on a prior professional relationship between defense counsel and a prosecutor was not ripe for review. (Mike Frisch)
February 22, 2008
Reasonable Contingent Fees
The New Jersey Appellate Division reversed and remanded for further proceedings a trial court decision that had placed the burden of proof on a law firm "to establish that the contingent fee recovered on the first $2,000,000 of [a] settlement was inadequate." The firm had sued the Division of Youth and Family services for failure to properly provide for the care and custody of three minors. One of the children was killed; the other two were "discovered locked in the basement near starvation." The gross settlement of the claims was for $7.5 million.
The trial court had held that the law firm was not entitled to a fee on amounts recovered in excess of $2 million. The decision here recites the benefits of contingent fee agreements and holds that the failure of the firm to submit time records was not fatal to the fee claim. The burden is not on the firm to demonstrate that the fee was inadequate; rather, the judge must determine whether a fee based on a recovery in excess of $2 million is reasonable. The court sets out the factors the trial court must consider on remand in determining a reasonable fee. (Mike Frisch)
Not Laches But Mitigation
The Iowa Supreme Court reprimanded an attorney who had previously been suspended followed by probation as reciprocal discipline based on a Nebraska sanction. The court found improper business transactions with a client but rejected charges of neglect and failure to return an unearned fee. The court's handling of the sanction issue is quite instructive. The misconduct occured during the same time period as the Nebraska violations. The attorney has now been reinstated in Nebraska (but not in Iowa)and compliant with his Nebraska probation. There was a significant delay in bringing charges in Iowa.
While rejecting claims of laches and equitable estoppel, the court found that "[the attorney] has a point. He had been severely sanctioned for his past misconduct, but has no recent misconduct...Further, some of his past misconduct appears to be associated with various medical conditions, which appear to have been resolved." A fresh Iowa suspension "could lead to reciprocal sanctions in Nebraska, thereby unfairly disrupting [his] efforts at rehabilitation. While this disruptive feature does not establish a complete defense, we do find it a factor that should be considered in mitigation." Thus, no suspension here. (Mike Frisch)
Proof Of Dishonesty
There is an interesting bar discipline decision from the Illinois Review Board that recommends a 18 month suspension based on multiple findings of misconduct. The board sustained a finding below that the attorney had not charged an unreasonable fee. The lawyer had agreed to a $100 per hour fee with a 25% contingency. After he was fired, he sued the client asking for hourly fees of $275 and obtained judgment for over $12,000. The board concludes that the judgment was a bar to the unreasonable fee allegation: "the Administrator presented no evidence indicating that $275 per hour...was per se unreasonable." Maybe not, but it was in direct violation of the lawyer's obligation to charge what he had agreed to charge.
In another matter, the attorney violated the duty of confidentiality in a motion to withdraw from representation:
" In advising the court that she had retained new counsel, Scott [the client]complained that Respondent was no longer acting in her best interests, was inconsistent in his facts and advice, could not be trusted and might not be competent. In an effort to defend himself against these charges, Respondent attached his affidavit to his motion to withdraw as Scott’s attorney, which included the advice that he had given her and reasons for his change in strategy, Scott’s responses and later in the case, her refusal to communicate with him, Respondent’s version of the conflicts that arose between them and his belief that Scott had not been entirely honest about the value of her property or her credit rating."
The board rejected the contention that the "self-defense" provisions of Rule 1.6 permitted the disclosures.
Finally, there was an issue of dishonesty charged pursuant to Rule 8.4(c). As we all know, there is no requirement that the dishonesty relate to the practice of law or adversely reflect on fitness to practice. Rather, the rule requires honest behavior in both professional and personal dealings. Here, the lawyer had bounced a check tendered to pay a filing fee. He had a record of prior bad checks. The hearing board found credible the lawyer's testimony that "he was unaware of the balance of the account at the time he tendered the check" and rejected the dishonesty charge. The Review Board was not buying:
"The Administrator’s argument that a violation of Rule 8.4(a)(4) may be found when an attorney’s conduct is so careless or reckless as to be considered knowing is correct, however. In re Jakubowski, 93 CH 455 (Review Board, May 10, 1996) Respondent’s petition for leave to file exceptions denied; Review Board approved and confirmed, No. M.R. 12728, (September 24, 1996). Black’s Law Dictionary defines "recklessness" as "[c]onduct whereby the actor does not desire harmful consequence but nonetheless foresees the possibility and consciously takes the risk." Black’s Law Dictionary (8th Ed. 2004). That is exactly what has happened in this case.
Respondent apparently believed that as long as he did not actually know the balance of his account, he could write checks with impunity. Despite a lengthy history of returned checks and overdrawn accounts, Respondent acknowledged that his bookkeeping "wasn’t wonderful at that point." While he kept a running balance in his account, he agreed that "apparently [it was] not good enough." Bank records from the 8½ months before he wrote the check to the Circuit Court show a confusing array of overdraft charges that resulted in part from fourteen checks written by Respondent that could not be cashed when first presented for payment, due to a lack of funds.
By tendering his check to the Clerk of the Court, Respondent implicitly represented that it would clear when it was presented for payment."
There is a dissent that would uphold the finding of no dishonesty as a finding of fact that the review board must accept. (Mike Frisch)
February 21, 2008
"A Plethora Of Health Issues"
An Illinois Hearing Board has recommended a two-year suspension with a number of conditions for an attorney who had gained access to his mother's prescription pad (she is a licensed physician) and written himself a prescription for Ritalin using her name. He also used another doctor's prescription pad to attempt to obtain Ritalin. Criminal charges arising out of these incidents are deferred and may be dismissed if the lawyer complies with certain conditions.
Medical testimony at the disciplinary hearing revealed that:
"Respondent suffers from a plethora of health issues. Dr. Henry stated that Respondent suffers from bipolar disorder attention-deficit disorder, personality disorder and a number of poly-substance abuse and dependence issues. Dr. Henry also stated that Respondent suffers from sleep apnea, morbid obesity, hypertension and diabetes.
Dr. Henry [the ARDC expert in forensic psychiatry] opined that Respondent’s misconduct alleged in Count I was a very deliberate and conscious attempt to preserve and enhance an elevated mood state. At that time, Respondent was suffering active symptoms of bipolar disorder. Dr. Henry opined that Respondent’s misconduct alleged in Count II was a very goal-directed and organized attempt to sabotage his career. Dr. Henry opined that Respondent’s bipolar disorder, specifically the depressive phase, was very much linked and very much mitigated the behavior that is alleged in Count II."
As to sanction, the hearing board states:
"In mitigation, Respondent has not been previously disciplined. The evidence shows, by testimony offered by the Administrator’s witness, that Respondent suffers from bipolar disorder, attention-deficit disorder, personality disorder and a number of poly-substance abuse and dependence issues. Respondent also suffers from sleep apnea, morbid obesity, hypertension and diabetes. In aggravation, we are troubled by Respondent’s failure to authorize Dr. Henry to speak with Respondent’s psychiatrist, primary care physician and probation case manager. We also find Respondent’s failure to offer character witness testimony as well as employment documentation evidence in aggravation. We note that while Respondent is not required to testify, the Hearing Panel would have appreciated hearing Respondent’s testimony regarding several issues, i.e. his employment status and functions, his rehabilitation strategies, and his explanation for failing to comply with Dr. Henry’s requests. In addition, although Respondent is presently enrolled in a deferral program for two felonies where he pled guilty, we note that the successful completion of that program is scheduled to occur after the conclusion of these proceedings and that the failure of Respondent to comply would result in the reinstatement of those felony convictions." (Mike Frisch)
In Praise Of Efficiency
An attorney who had been disbarred in Florida for continuing to practice law after a misconduct suspension was disbarred by the New York Appellate Division for the First Judicial Department. Reciprocal, and identical, discipline was deemed appropriate as "[t]he State where respondent practiced law at the time of the offense has the greatest interest in the issue of sanction, and the sanction imposed by Florida is consistent with this Court's precedent of disbarring attorneys who practice law while under suspension." It took New York less than four months from the date of the Florida order to complete its reciprocal proceeding. If the District of Columbia's disciplinary system operated as sensibly and efficiently as New York did in this matter, I might still be with Bar Counsel. Then again, maybe not. (Mike Frisch)
"A Highly Questionable Claim"
The New York Appellate Division for the Second Judicial Department upheld a trial court's dismissal of a legal malpractice claim that "alleg[ed] that the plaintiffs were forced to settle their underlying personal injury action for an amount far below what the would have recovered had it not been for the defendant's actions." The defendant law firm had "refus[ed] to pursue a highly questionable claim for exaggerated lost earnings" and had been discharged by plaintiff five months before the underlying case had been settled: "[S]ubsequent counsel had a sufficient opportunity to protect plaintiff's rights by pursuing any remedies it deemed appropriate on their behalf." (Mike Frisch)
Duke Lacrosse Students--the Unaccused Ones--Sue Duke and Durham
News here. The school's response is that their complaint is with ex-D.A. Mike Nifong, not the university. [Alan Childress]
Removal From Office Ends Judicial Misconduct Proceeding
An Acting Justice of the New York Liberty Village Court entered into a stipulation that was accepted by the Commission on Judicial Conduct that resulted in a pending judicial misconduct matter being closed. The justice agreed to "neither seek nor accept reappointment" to the bench now or at any time in the future. The pending charges alleged failure "to report and remit fines and fees to the State Comptroller" as required by law, but not misappropriation. There also was a pending complaint of a six-month stayed suspension by the Third Department. The stipulation acknowledged that the justice will not defend against the complaints but accepts the removal from office as an appropriate basis to close the matter. (Mike Frisch)
Criminal Bar Charges Without A Conviction
A disciplinary complaint filed recently in Illinois alleges three counts of fraud and false statements in connection with bankruptcy matters initiated by the lawyer on behalf of business entities in which he had an interest. Although it is alleged that an order was entered in one matter denying discharge of a debt, it does not appear that the accused attorney was convicted of any criminal offenses arising out of the course of conduct. A conviction is not required to establish that an attorney engaged in criminal conduct "that adversely reflects on the lawyer's honesty, trustworthiness or fitness to practice in other respects." Indeed, in bar discipline, the violation may be proved under a lesser standard of proof than the "beyond a reasonable doubt" standard that applies in criminal matters. (Mike Frisch)
February 20, 2008
Lost in Translation
If you are a fan of the 1997 movie with Morgan Freeman and Ashley Judd called Kiss The Girls (or the James Patterson novel), as I suspect Jeff is, you should know that your attempts to rent it at Blockbuster in China will fail unless you ask for it by the name it is called there, Panic Lip Robbed. [Alan Childress]
What is the Worst Email "Reply All" Gaffe You Made or Heard Of?
Posted by Alan Childress
We ask you to Comment with the best/worst example. On the heels of this WSJ Law Blog post on Skadden/Sheila Birnbaum's sending an email errantly to reporters that questioned the Mississippi AG's views, and the earlier Pepper Hamilton mix-up of a reporter's name with a co-counsel's (oh that pesky auto-complete function), I am reminded of a time that I meant to forward my boss's email on to someone else with the view, I duly added, that my boss was insane. Instead, I 'Replied' it to the boss. Fortunately he was insane, his email was insane, and he did not seem to register the insult, likely knowing he or his email was insane. So it's all good. What's your example?
Suspension Recommended For Juror Harassment
The Review Department of the California State Bar Court has recommended a suspension of one year, stayed except for 90 days of actual suspension, with 18 months probation in a case involving misconduct as follows: "not only did [the lawyer] harass a juror, he secretly tape-recorded a telephone conversation with an adverse party and then lied about it in litigation." The underlying case was a medical malpractice suit. "Although [the attorney] knew that [a doctor] would be a defendant in any medical malpractice lawsuit he filed, he failed to advise or warn [the doctor] of this fact in his [notive letter to the doctor]." As the letter led the doctor to believe he was considered a potential witness, he telephoned the lawyer, who tape recorded the conversation despite denying he was doing so.
After a defendant's jury verdict, the lawyer contacted a juror. The conversation "changed from being cordial to adversarial." The juror hung up on the lawyer after what he perceived as an "implicit threat" to contact the juror's employer.
The Review Department found the contact with the doctor and recording of the conversation as misconduct involving moral turpitude. A charge that the lawyer illegally recorded a confidential communication was dismissed as the "law was uncertain as to what was a 'confidential communication.' " The harassment charge was sustained: "[a] juror should not have to endure such intimidation merely because he refuses to aid an attorney." The hearing department recommendation for a lighter sanction was rejected due to the "intolerable" nature of the misconduct and lack of recognition of wrongdoing. (Mike Frisch)
"Undiagnosed Lack Of Impulse Control"
An attorney was disbarred on consent last week by the District of Columbia Court of Appeals. The rest of the story, as Paul Harvey might say, is in this week's Legal Times. According to the article, the attorney was formerly a staff attorney at Covington & Burling. She was twice convicted of stealing antiques, on one occasion "using a patio chair to smash the glass panes of the door" and load into a car "about $5,000 worth of vases, figurines and jewelry." Another case involved the theft of an "art deco metal ashtray lamp and a Nippon hand-painted china teapot" that were found listed for sale on Ebay. The attorney is quoted as stating that the conduct involved "compulsive shoplifting" caused by "an undiagnosed lack of impulse control" for which she is presently being treated.
There was a proceeding before the Board on Professional Responsibility to determine if the convictions involved moral turpitude that was mooted by the consent to disbarment. Perhaps the most interesting similar case (from a procedural standpoint) that I handled at Bar Counsel involved Ruthann Aron, convicted of a Maryland common law misdemeanor relating to her attempt to arrange a contract murder of her husband and a lawyer. We had litigated the issue of moral turpitude and argued it to the D.C. Court of Appeals when her consent to disbarment rendered the issue moot.
Thanks to a loyal reader for passing this item along. (Mike Frisch)
An Academic's Blog to Keep an Eye On, With Some Posts on the Teaching of Legal Ethics in the US and UK: Welcome to the Colonies, John Flood
Posted by Alan Childress
John Flood, a professor of law and sociology in the UK and Germany, is a leading figure in the Law and Society Association and a prodigious writer on law firms and the legal profession worldwide. His recent
work on the globalization of firms is becoming part of the basic canon of reading on the profession and its institutions internationally. Some of his writings are readily linked here (click on Publications).
This year, John is visiting at the University of Miami, lucky them (and lucky for him, the city has good cigars). And lucky for us, he is currently blogging his experiences at a US law school, with interesting contrasts to legal education in the UK. Here is his blog: Random Academic Thoughts (RATS). I was particularly interested in his post (see Feb. 2 here) on the difference between how legal ethics is taught in the US versus the UK, and we in US law schools (surprisingly) come off looking pretty good by comparison.
I also enjoyed these observations on giving a paper to a law faculty at lunch, which should be considered by those who will do a job talk in seeking employment as a law prof.
Pro Bono Service Mitigates Sanction
An attorney who had failed to communicate with and return unearned fees to two clients accepted a stipulated reprimand that was approved by an Illinois Hearing Board. He initially had failed to respond to the bar investigation but eventually did so. Mitigating factors included health issues and significant pro bono service. Special mitigation, Chicago-style: "[H]is handling of a pro bono case in behalf of a Nazi prison camp survivor was praised in a column by the late Mike Royko in the Chicago Tribune." The attorney also must complete the ARDC Professionalism Seminer within one year. (Mike Frisch)
There is an interesting article in this week's Legal Times (subscription required) tilted "How Firms Can Win In Stormy Weather" that features a round table discussion with leaders of five prominent law firms. The discussion is focused on issues of firm development and management in an uncertain and challenging business environment. Among the participants is Robert Ruyak, managing partner, CEO and chairman of Howrey, a law school classmate of mine back in the dawn of time. (Mike Frisch)