March 1, 2008
"Ethical Codes and the Commercial Mediator"
Posted by Alan Childress
The relatively new ADR Prof Blog, now a member of the LPB Network, has a post by the above title which points to a powerpoint presentation recently made at an AALS Section meeting on the subject. The presentation was by Ellen Waldman of Thomas Jefferson and by Dwight Golann, a colleague of Jeff's at Suffolk. Welcome to the Blogosphere, then, to ADR Prof Blog.
February 29, 2008
Reciprocal Sanction Imposed On Corporate Counsel
An attorney who practiced in California was holding almost $2 million in escrow and distributed all but $100,000 in accordance with his obligations. The attorney was corporate counsel for Pulse-LINK, Inc. The withheld amount was used for the lawyer's own purposes. The corporation had sued the attorney and obtained a judgment.
The lawyer was disciplined in California but did not report the sanction to New York, where he also was admitted. When New York learned of the suspension, a reciprocal discipline proceeding was initiated. The New York Appellate Division for the First Judicial Department deferred to California's sanction analysis because the misconduct had taken place there. California had the primary interest in determining sanction. The court imposed a two-year suspension (the actual period of the California suspension, which also required the attorney to make restitution) based on the California action. (Mike Frisch)
More Friends Like These
The Pennsylvania Supreme Court suspended an attorney for a year and a day, adopting the proposed sanction of its Disciplinary Board. The case is an interesting one involving a relatively inexperienced attorney who was operating a real estate title company. A "friend" asked that the attorney "do him a favor, and [the attorney] agreed." The friend (not a lawyer) had taken a deposit on real property and failed to either escrow the funds or return to the buyer when the deal fell through. The buyer had complained to police, resulting in criminal charges. The attorney wrote two letters (signed "esquire") confirming that he had received and escrowed the money (over $25,000) that the friend owed. As a result, the criminal charges were dismissed.
Trouble was that the assertions were false. When the falsehoods were discovered, the criminal case had to be reinstituted and additional public expense was involved in the friend's extradition. From the board's appended report: "Respondent's perplexing inability to articulate why he signed the letters when he knew he did not hold the escrow funds underscores his total lack of awareness of and appreciation for the circumstances." (Mike Frisch)
Well Conceived Defense Not Ineffective Assistance
The Massachusetts Supreme Judicial Court affirmed a conviction for first degree murder, rejecting claims of prosecutorial misconduct and ineffective assistance of trial counsel. The court concluded that the prosecutor crossed the line of permissible argument in making a reference to "torment our women." The case involved a dark-skinned Hispanic male who was alleged to have murdered a white woman. The court states:
"The particular phrase should not have been used. A prosecutor's duty is to avoid assiduously interjecting racial prejudice into a case, and the phrase 'our women,' in the context of this case, has that potential. We view this as error. However, the statement was isolated and there is no hint of a similar error elsewhere in the prosecutor's closing or the trial as a whole. The focus of this portion of the argument was the strength of the circumstantial evidence, particularly the keys. That argument was very logical and methodical. The absence of any objection from experienced defense counsel suggests that the tone of the argument was not inflammatory or an attempt to interject racial prejudice into the trial. The judge's instruction to determine the facts in a "fair and impartial" manner and "without ... any bias, any prejudice or any sympathy," adequately checked any unlikely taint this minor error may have caused. We conclude that the remark did not create a substantial likelihood of a miscarriage of justice."
The body of the victim was not found for over a week. The last person known to have seen her alive was Pilon. Pilon and the victim had ended a romantic relationship but remained friends. The defense theory at trial was the Pilon, not the accused, had committed the murder. Defense counsel was alleged to be ineffective in failing to interview the victim's neighbors. The court rejected the claim:
"Counsel is not required to raise every conceivable defense. Indeed, while defenses may be compatible, they also may be incompatible, conflicting, or even contradictory. Even compatible defenses may dilute each other, and counsel may decide reasonably to proceed with only one. It is counsel's duty to exercise his or her best judgment in selecting a strategy that best fits the unfolding circumstances. When counsel's strategic decisions are in issue, we must show "some deference to avoid characterizing as unreasonable a defense that was merely unsuccessful." Commonwealth v. White, supra at 272. We cannot say that counsel's strategy here was manifestly unreasonable. Rather, it appears well conceived, well prepared, and developed through the exercise of sound professional judgment."
The case is Commonwealth v. Montez, decided yesterday. (Mike Frisch)
February 28, 2008
Web Page Rules Proposed In Florida
A Palpable Conflict Of Interest
The New Mexico Supreme Court disbarred an attorney who had sought a conservatorship as lawyer for the person for whom a conservator was sought as well as his wife (Ruth). The husband (Bruce) had set up two trusts with significant trust payments to the Moody Bible Institute of Chicago on his death. After a guardian ad litem was appointed, the attorney filed two lawsuits in federal court to void the Moody Bible trusts without notice to the guardian ad litem. He also took action to bar Bruce's access to accounts held as co-tenant with Ruth. After a court had disqualified him from representing Bruce due to the conflicts of interest with Ruth, the lawyer:
"...went to the dementia unit of the Woodmark, a residential care facility in which Bruce was a patient, and had Bruce removed from the dementia unit and taken to a private room to execute a new will and trust which Respondent had prepared for Bruce’s signature. The new will and trust sought to revoke the Moody Bible trusts and create a new trust with Ruth as trustee with all the power 'that an absolute owner of such property would have.' These documents had the additional effect of removing all of the assets belonging to Bruce from the jurisdiction of the court in the guardianship and conservatorship proceeding. Respondent did not notify the court, the guardian ad litem, or the temporary guardian and conservator of his intended visit with Bruce, or of his efforts to have Bruce sign a new will and trust. "
A hearing committee had recommended a six-month suspension with automatic reinstatement. A panel of the disciplinary board proposed disbarment. The court agreed, noting a prior instance of similar misconduct. The court also rejected a series of claims of prosecutorial misconduct. (Mike Frisch)
Cease And Desist
An attorney was found in criminal contempt "for engaging in law-related activities while employed by the same law firm for whom he worked" when he was convicted of bank fraud and disbarred on consent in 2003. The courts, rather than the Pennsylvania Bar Disciplinary Board, have the exclusive authority to adjudicate and punish such contempts. The former attorney was fined $1,000 and prohibited from applying for readmission until August 3, 2008 by order of the Pennsylvania Supreme Court. The date for reapplication recommended by the board was August 3, 2010. (Mike Frisch)
Every lawyer of advancing years (such as myself) can look back over their career as an attorney and remember the case that most sticks in the craw. For me, the choice is easy. I spent over a decade of my life prosecuting a series of bar disciplinary and disability cases that involved a lawyer named Robert Stone. The case originated as a reciprocal matter as a result of a three-year suspension imposed by the Virginia State Board. When the D.C. Board declined to recommend reciprocal discipline, I brought charges based on both the Virginia violations and a fresh case alleging D.C. misconduct and later a proceeding alleging a basis for a disability suspension. After a remand by the D.C. Court of Appeals (which pondered the issues for five years after oral argument), a 30-day suspension was eventually imposed. The whole sad tale is told in In re Stone, 672 A.2d 1032 (D.C. 1995)(the board's mea culpa for not following my proposed approach: "In responding to [Bar Counsel's] argument, the Board took the first step down what proved to be a disastrous procedural course by agreeing with the Hearing Committee that Bar Counsel's challenge to [Stone's] present fitness to practice law was not relevant to the charges of past violations of disciplinary rules"). My reward for being right was to have to completely retry the case.
Well, it appears that the Virginia Board had finally had enough of Mr. Stone. From the state bar web page:
"On February 22, 2008, the Virginia State Bar Disciplinary Board revoked Robert Ray Stone Jr.’s license to practice law for violating Rules of Professional Conduct that govern diligence, conflict of interest, declining representation when that representation will result in a violation of the disciplinary rules, handling of client funds, and the unauthorized practice of law. Mr. Stone’s license has been administratively suspended since November 1989. He has been ineligible to practice law since that time, but he continued to represent clients in Virginia."
Let's see if it takes another decade for D.C. to impose reciprocal discipline. (Mike Frisch)
Erroneous Advice Amounts To Ineffective Assistance Of Counsel
The Florida Supreme Court held that "when a defendant has committed two separate crimes and informs his attorney about both of them, the attorney's erroneous advice that his plea in one case could not be used to enhance his sentence in the other constitutes ineffective assistance of counsel." The court found that the court below erred in concluding that the claim was untimely. The court set forth the pleading requirements for such a claim and remanded for further proceedings. (Mike Frisch)
A Lenient Sanction
I must confess that I was surprised to see such lenient discipline imposed by the Indiana Supreme Court in a decision issued yesterday. The attorney had deposited a settlement check in his trust account. The balance in that account twice dipped below the amount due the client over the next month. When the lawyer provided the client with a trust check, it bounced. The check cleared a week later.
That conduct (it sure looks like misappropriation) is serious enough. The attorney also gave what the hearing officer found to be three conflicting explanations of his conduct that were "knowingly made by the Respondent and each statement was false." The court here concluded that the lawyer had "made knowingly false statements to the Commission."
Sanction: A six-month suspension with all but 30 days stayed, followed by eighteen months of probation (the parameters and requirements of the probation are not set out in the court's decision). There is no information that suggests any particular mitigation, nor evidence of an acknowledgment of the falsehoods. Did the court just have one of those bad days? (Mike Frisch)
February 27, 2008
Corporate Counsel Engaged in Unauthorized Practice For 27 Years
A lawyer was admitted in Kansas in 1973. He left Kansas in 1976 without providing the bar with a forwarding address, moving to Oklahoma to work for Phillips Petroleum. Kansas suspended him for failure to pay bar dues, but the lack of a forwarding address preventing him from getting actual notice of the suspension. He then moved to Ohio in 1979 and was suspended by Oklahoma in 1980 for failure to pay dues. He registered as an in-house Ohio counsel and eventually became Vice President and Assistant General Counsel of Dana Corporation. He had failed to properly maintain his Ohio in-house counsel registration after 1995.
The fact he was not licensed in good standing anywhere came to light after he was "contacted by a reporter who was writing a story for a national law publication about corporate counsels for large United States companies who were not licensed to practice law." He contended that he then realized he might have a problem. He self-reported to the Ohio bar and entered into a consent agreement admitting unauthorized practice. He then sought reinstatement in Oklahoma.
The Oklahoma Supreme Court found that he "engaged in the unauthorized practice of law for 27 years and that his conduct encompassed misrepresentation." The court ordered that he remain suspended until April 10, 2008 and pay costs and back bar dues totalling almost $6,000. The court's reasoning:
"Here, while working for the corporation, DeBacker [the attorney] never stepped foot in a courtroom to represent the corporation, nor does it appear the corporation was injured by the fact that he was not licensed. In addition to attending continuing legal education, DeBacker presented numerous letters recommending reinstatement from attorneys who have known DeBacker for many years and who had first hand knowledge of his legal skills, character, and competence. We are convinced that DeBacker has meet his overall burden of proof by clear and convincing evidence that he should be reinstated. However, we are persuaded by previous cases that some form of discipline should be imposed for his misrepresentations and unauthorized practice of law. Considering that the misrepresentations were neglectful, but not intentional, and that he voluntarily withdrew from practicing law on April 10, 2007, and self-reported to the Ohio Supreme Court, his reinstatement will be deferred until April 10, 2008, which results in a one-year suspension from the practice of law."
Here is a link to an article about the situation from the Toledo Blade. (Mike Frisch)
When the Real Cost of Litigation is Part of the Marketing Budget. . . .
Posted by Jeff Lipshaw
The WSJ Law Blog has a story up on the remarkable decision by Judge Richard Matsch (previously best known for his no-nonsense - cf. Judge Ito - conduct of the Timothy McVeigh trial) to overturn a $51 million IP verdict in favor of Medtronic with an attendant award of attorneys' fees to other side, upheld on appeal by the 10th Circuit, as a result of "overzealous" conduct by Medtronic's lawyers, McDermott, Will & Emery.
A faculty colleague who I respect and admire immensely asked me several weeks ago if, in my long practice experience, there were really were serious cases that companies pursued for reasons that did not involve the merits of the lawsuit itself. After chuckling for a minute, I said "absolutely, and the best example is patent litigation." It's because the fact of the litigation casts a cloud on the allegedly infringing product. And while the IP lawyers tell me that it is abuse of patent to let the sales people tell customers that the other product infringes, (a) you can't monitor that in any effective way, (b) the pleading have a qualified privilege, and (c) the fact of the litigation and the possibility of an injunction is often enough to sway a customer away from the alleged infringer.
Indeed, dollar for dollar, it may be one of those instances in which legal fees really do bring some bang for the buck in terms of the top line.
So it's nice to see that a well-respected judge has used the only effective tool there is to regulate this - a finding under Rule 11.
I'd also agree with a number of the comments to the WSJ Law Blog that patent litigation seems to be particularly fraught with over-the-top zealousness. I used to swear that in some of our patent cases the lawyers for both sides had a "nasty discovery dispute letter" quota that they had to fill by way of useless but colorful letters sent by e-mail, overnight courier, and regular mail accusing the other side, variously, of document withholding, destruction, delay, sodomy, bad breath, and unsightly wax build-up.
With Friends Like These
Louisiana seems to have more than its fair share of colorful bar discipline cases. A decision from the Supreme Court involves a former judge who had returned to private practice. He represented a client in a case involving contested stock ownership in a closely-held family corporation. The client's son ("Dooksie") brought the lawyer a document that "purported to evidence [another family member's] intent to divest herself of the stock at issue. It was later determined that this document was the work product of [her] counsel and had been taken from her file without her knowledge or permission." The attorney accepted without any questioning Dooksie's assertion that the document "had appeared in the mail...in an unmarked envelope with no return address." The attorney used the document as evidence.
When Dooksie brought him a second document signed with opposing counsel's first name that suggested an intent to destroy evidence, he did not investigate the "highly questionable circumstances" of Dooksie's possession or contact opposing counsel. Rather, he took it ex parte to the judge. As a result, the judge recused himself from the case. After the judge had ordered recusal and left the courtroom, the attorney was heard to remark: "[The judge] has no balls, he has no balls at all. That's his problem, he just has no balls."
In a second matter before the same judge, the lawyer became angry when the judge decided to recuse himself. A version of the "no balls" remark was made in open court, accompanied by the F-bomb.
The court found that "[t]he common theme which runs throughout this proceeding is respondent's lack of respect for the dignity, impartiality, and authority of the district court." The court ordered a six-month suspension, all but 45 days deferred, with Ethics School and five extra CLE hours in "the area of professionalism." While not a mitigating factor, the court noted that there was a "longstanding friendship" with the (now deceased) judge that "may have caused respondent to believe he could take a more colloquial tone toward the judge." (Mike Frisch)
Landing On Your Feet
This article from the New York Law Journal (courtesy of Abovethelaw) recounts the recent good fortune of a disbarred New York lawyer. We had reported the disbarment but, as they say, there appears to be more to the story than previously had met the eye. The article states that the disbarred lawyer intends to seek reinstatement at the earliest opportunity. (Mike Frisch)
A recent judicial ethics opinion from Massachusetts considers whether and to what extent a trial judge who presided over a high-profile criminal trial may cooperate with the author of a book about the case. The conclusion:
"the Code of Judicial Conduct prohibits your discussion of the adjudicative process on matters not contained in the public record. Consequently, the Code does not allow you to discuss your 'impressions' from your perspective as the trial judge; your thoughts about the case 'in the context of those times'; how you 'approached' the case; any 'color or context' you might be able to provide; and anything else that 'stood out' for you about the case if it would reveal information about the adjudicative process that is outside the public record. The Code would allow you, however, to discuss administrative matters, such as any 'extra concerns' you may have had in managing a high profile matter, including security concerns, media concerns, steps you took to address these concerns, and, in the words of Section 3 B (9) (a), 'the procedures of the court, general legal principles, or what may be learned from the public record in a case.' Topics such as special concerns for the families involved lie on or near the border of administrative and adjudicative matters and would need to be addressed with caution so as to prevent the conversation from calling into question your impartiality in overseeing the matter."
Given these premises, it will be quite difficult for the judge to grant the interview and remain within the confines of the opinion. Perhaps that is the point. (Mike Frisch)
New Proposed Rules For Ohio Judges
The Ohio Supreme Court has proposed new rules of conduct for judges. This link to the court's announcement provides a link to the full text of the proposed revisions. The announcement states:
A sampling of some of the more significant revisions contained in the draft Code include:
- A proposed rule that bars a judicial candidate from making any pledge, promise or commitment inconsistent with the impartial performance of judicial duties.
- New provisions that provide guidance to judges who preside over “specialized dockets” such as drug courts or mental health courts.
- New provisions that outline the permissible role of a judge in facilitating the settlement of pending cases.
- Clearer guidance with regard to the acceptance and reporting of gifts, including a streamlined reporting requirement for gifts and extrajudicial compensation. (Mike Frisch)
February 26, 2008
Florida Legal Ads Restrictions Painted as Silly or Arbitrary by WSJ
Posted by Alan Childress
According to the Wall St. Journal’s Objection! Funny Legal Ads Draw Censure, Florida leads the nation in restrictions on the use of animals in lawyer advertising.
The article is limited only to animals and TV ads; had they mentioned advertising rules more generally, and especially the evolving rules relating to law firm web pages, they’d have had to mention New York state’s increasingly restrictive policies, quite possibly worse than Florida’s.
In the WSJ article, Florida's bar counsel says it's about protecting the public, while an affected lawyer suing the bar on First Amendment grounds "sees it differently. 'The advertising rules are bizarre,' he says. 'The established legal bar pines for the Eisenhower era.' "
Facilitating Cheating On Escheated Funds Leads To Suspension
The Wisconsin Supreme Court imposed a suspension of four months in a case where the accused attorney had defaulted on charges of misconduct. The violations arose out of the attorney's "solicitations and representations of individuals that might have claims to funds that had escheated to the state and were being held by the Wisconsin State Treasurer." The attorney gave permission to a lawyer not admitted in Wisconsin to file pleadings under her name. That person then misappropriated portions of the funds that had been recovered in several matters. Disciplinary counsel had stated that the default process may have "kept some mitigating factors from being fully disclosed."
The court concluded:
"While we acknowledge Attorney Knight's inexperience, her expression of remorse, her attempts to rectify some of the harm to clients, and the lack of evidence that she explicitly knew of Eleby's conversion of funds, we cannot agree with a characterization of Attorney Knight as a 'victim.' She knowingly allowed an individual who was not licensed in Wisconsin to use her name and attorney number to represent clients in the courts of this state. Moreover, she allowed Eleby to cash and disburse checks that were made out to her and to her trust account apparently without any effort to ensure that the clients received the funds to which they were entitled. These actions ultimately led to the theft of funds that belonged to clients for whom Attorney Knight was responsible. Further, Attorney Knight's failure to maintain and utilize an appropriate client trust account demonstrates an alarming lack of understanding or a disregard of one of a lawyer's core duties——protecting the interests of clients and their property."
Reinstatement is conditioned on restitution to two of the harmed clients. (Mike Frisch)
Arrest = Suspension
The South Carolina Supreme Court ordered the interim suspension of a lawyer as a result of his arrest for "pointing and presenting a firearm." In most jurisdictions, suspension would not be imposed for an arrest but rather as a result of a finding of guilt. The District of Columbia rule (which I believe is consistent with the vast majority of court rules relating to attorney discipline) provides:
"Upon the filing with this Court of a certified copy of the record or docket entry demonstrating that an attorney has been found guilty of a serious crime or has pleaded guilty or nolo contendere to a charge of serious crime, the Court shall enter an order immediately suspending the attorney, notwithstanding the pendency of an appeal, if any, pending final disposition of a disciplinary proceeding to be commenced promptly by the Board. Upon good cause shown, the Court may set aside such order of suspension when it appears in the interest of justice to do so."
The ABA Model Rules for Lawyer Disciplinary Enforcement also require proof of a finding of guilt before interim suspension may be imposed.
While I recognize that bar discipline exists to protect the public and uphold the integrity of the legal profession, does suspension based on an arrest violate fundamental notions of the presumption of innocence? (Mike Frisch)
Bar The Door
A municipal court judge in South Carolina was suspended on an interim basis. One unusual aspect of the court's order brings to mind the much publicized case from Nevada involving Judge Halverson:
"respondent is prohibited from entering the premises of the Saint George or Cottageville Municipal Court unless escorted by a law enforcement officer after authorization for any such entry by the Chief Magistrate of the county in which the court is located. Finally, respondent is prohibited from having access to, destroying, or canceling any public records, and he shall immediately release any public records in his possession to either the Chief Magistrate of Colleton County or the Chief Magistrate of Dorchester County, depending on whether the records pertain to Cottageville or Saint George."
The order further provides that the municipalities need not pay his judicial salary during the period of suspension. (Mike Frisch)