Thursday, April 30, 2009
A complaint by an associate of a law firm that had claimed damages against individual partners based on allegedly false representations regarding his partnership prospects was reinstated by the New York Appellate Division for the First Judicial Department:
Order, Supreme Court, New York County (Bernard J. Fried, J.), entered August 1, 2008, which, to the extent appealed from as limited by the briefs, partially granted defendants' motion for summary judgment dismissing the complaint and denied plaintiff's motions for partial summary judgment and to strike defendant's motion, unanimously modified, on the law, to reinstate so much of the first cause of action as alleges that plaintiff was induced to remain an associate with defendant law firm by the individual defendants' materially false representations about the firm's partnership process, and otherwise affirmed, without costs.
Plaintiff's alleged reliance on the individual defendants' statements concerning the partnership process at the law firm and plaintiff's partnership prospects was not unreasonable as a matter of law. He was an associate with no experience in applying for partnership at the firm, the firm's partnership process was confidential, and defendants, as partners, were privy to information about the past practices of the firm's Executive Committee.
As to damages, if plaintiff proves his claims, he will be entitled to the difference between the immediately payable portion of the other firm's offer, such as the signing bonus, and the sum he received from defendant law firm immediately after agreeing to remain with defendant. His damages may not include any amount based on continued employment with the other firm, since the duration and success of his career with that firm are speculative.
The Florida Supreme Court disbarred an attorney for various acts of professional misconduct including entering into a fee agreement that allowed the client a $200 credit for each time she had sex with him and a $400 credit if she arranged for other females to have sex with him. Alabama had investigated the incident and imposed a suspension of fifteen months.
In another Alabama bar case, the lawyer attempted to place in evidence a video that had been edited without advising the authenticating witness that the tape was not the original. He had pled to a misdemeanor involving interference with a judicial proceeding. He also has a pending Bar proceeding in California and original proceedings in Florida, where was already on suspension.
The court imposed non-permanent disbarment:
[He] has broken numerous Bar rules. He satisfied his own sexual appetite with a client as part of a sex-for-fees arrangement. He altered evidence and caused a witness to unkowingly give false testimony. He has charged his clients excessive fees and stolen their money. He has failed to maintain a trust account. He has broken public confidence in the profession of the practice of law by neglecting his clients and failing to prosecute their cases. He has labored under a conflict of interest. He has prejudiced the administration of justice by misrepresenting facts to multiple courts. And, throughout the disciplinary process in these cases, he has been dilatory, deceitful, and evasive.
Here's a recommendation for discipline under circumstances that I have not previously encountered:
The attorney was admitted to practice in 2003. In 2005, he volunteered to serve on the Arizona State Bar Arbitration Committee. He initially failed to schedule a matter assigned to him. The matter was finally heard after the Bar's General Counsel intervened. He then did not file the decision in compliance with applicable time limits and failed to respond to repeated efforts to have him issue the decision. He also had not timely responded to the Bar investigation. Eventually, evidence was presented that the neglect was the product of "avoidant behavior that was symptomatic of depression and alcohol."
The hearing officer recommends that the lawyer be publicly censured and placed on probation for two years.
If you are Bar Counsel, you may wish to consider sending a copy of this recommendation to the volunteer hearing committees that have morbidly overdue reports. (Mike Frisch)
The Minnesota Supreme Court has imposed a 30 days suspension followed by two years of unsupervised probation in a matter where the attorney had given an incarcerated client prescription medication in violation of jail regulations and accepted money that he knew was subject to a court's freeze order as payment for past and future legal services. The attorney also must pass the professional responsibility portion of the bar examination. (Mike Frisch)
The New York of Appeals held that a defamation action against the New York Post was properly dismissed on summary judgment. The Post had reprinted portions of a lengthy article from the Los Angeles Times about a license revocation action brought against a medical doctor for alleged overprescriptions given to Ozzy Osbourne when he had a reality television show. The headline and a line of text inaccurately suggested that the license had already been pulled. The article also correctly stated the status of the matter.The paper had printed a clarification when requested to do so.
The court majority held that the plaintiff could not show actual malice as opposed to negligence. A dissent states:
The undisputed facts are reletively simple: The New York Post took a factually-accurate Los Angeles Times article, which stated that the California Medical Board had "moved to revoke" plaintiff's license, and rewrote the article to falsely state, iin the headline and in the body of the article, that plaintiff's license had been "pulled" and "revoked". In my view, these facts raise, at the very least, a question of fact as to whether the Post acted with "actual malice".
The Ohio Supreme Court web page reports:
The Supreme Court of Ohio today permanently [a] disbarred Dayton attorney... for multiple violations of state attorney discipline rules arising from her failure to file returns or pay federal, state or municipal income taxes from 1979 through 2001, and failure to withhold taxes or make Social Security contributions for employees of her law firm for approximately the same period.
The Court adopted findings by the Board of Commissioners on Grievances & Discipline that [the attorney], whose law license has been under an interim suspension since the Court was notified of her 2007 conviction on a felony tax evasion charge, engaged in conduct involving fraud, deceit, dishonesty or misrepresentation and in conduct that reflects adversely on an attorney’s fitness to practice law.
The Court held that [the attorney's] willful failure to pay her own taxes and failure to withhold taxes and make FICA contributions on behalf of her employees for more than 20 years “breached duties owed to the public and the legal profession,” and said the extended time period involved and gravity of her misconduct outweighed mitigation evidence presented by [the attorney] and called for permanent revocation of her law license.
The court's decision is linked here. (Mike Frisch)
Wednesday, April 29, 2009
The Pennsylvania Supreme Court imposed a retroactive suspension of a year and a day in a matter where the attorney had been convicted (and subject to interim suspension) of conspiracy to commit wire fraud and mail fraud. The Disciplinary Board found that the lawyer was "not a calculating participant in the scheme" and did not receive any financial gain from the scheme.
The attorney was counsel and secretary to Celestial Burial Case, which purported to be in the business of selling future casket needs, burial vaults and funeral merchandise. The company violated a law requiring that a percentage of the payments be held in trust and otherwise defrauded its customers. The funds were placed in the lawyer's IOLTA and other accounts and converted to the use of co-conspirators.
The sentencing judge in the criminal case noted that he was satisfied that the lawyer "would not commit another crime of that sort or any sort in the future." The lawyer's career had focused on poverty law and he devoted himself to a number of non-profit pursuits. (Mike Frisch)
A trial court improperly denied defense counsel's motion for a mistrial after his client had attempted to commit suicide and had been hospitalized in a coma. The trial on child rape and molestation charges was going into a third day when the suicide attempt took place. The Washington State Court of Appeals, Division II held as follows:
Anene was clearly unable to assist in his own defense since he was not present and was unconscious in the hospital. There was no need for a competency evaluation because it was clear that Anene was incompetent to stand trial due to his inability to assist in his own defense. See Hahn, 106 Wn.2d at 895. Therefore, the trial court's decision to proceed with the trial in Anene's absence clearly violated Anene's due process rights. We hold that the trial court erred in proceeding with the trial when faced with Anene's obvious incompetence. We reverse his conviction and remand for a new trial.
Notably, the prosecutor had commented in closing argument about the defendant's absence:
Now, there's one glaring thing that we can't ignore. And that's where is Mr. Anene? Certainly sitting here you must have noticed that he's gone and he is not here. And in noticing that he's gone and is not here when he has appeared for he first part of the trial, you can consider whether or not his absence is evidence, circumstantial evidence, because we have no direct evidence, but circumstantial evidence of a consciousness of guilt. Where's Mr. Anene?
The prosecutor well knew where the defendant was. (Mike Frisch)
The Mississippi Supreme Court has granted the petition for reinstatement of an attorney who had been on disability inactive status as well as 180 day suspension. The attorney was "brutally sexually assaulted" by the prospective client during a Sunday afternoon office visit at her office. According to the court's opinion, the attorney "suffered from severe emotional trauma, as well as crippling anxiety, depression and grief..." as a result of the incident. She thereafter failed to respond to a series of three bar complaints that led to the 180 day suspension and, later, to the disability inactive status based on a finding of post-traumatic stress disorder.
The attorney had entered into a two-year monitoring contract with the Lawyers and Judges Assistance Program, presented favorable medical testimony, received eight personal recommendations and had taken and passed the MPRE. The reinstatement case was filed under seal to preserve confidentiality of the process and to preserve the attorney's identity. The Bar had "strongly" recommended reinstatement. (Mike Frisch)
The New York Appellate Division for the First Judicial Department affirmed a trial court order permitting a pro se plaintiff in a legal malpractice action leave to add four additional law firm partners as defendants:
Plaintiff pro se served an amended complaint without leave of the court in which he named as additional defendants four partners of the law firm that had represented him in the underlying action. Defendants moved to dismiss the amended complaint on the ground that the newly added partners had no connection with the underlying action or contact with plaintiff. The motion court, after noting that the amended complaint was improperly served without court leave, dismissed it as against the newly added partners for failure to state a cause of action as against them "in their individual capacity." Several months later, plaintiff moved for leave to add the same four partners, submitting a proposed second amended complaint that was the same as the first except that it added an allegation that the four were partners of the firm at the time of the alleged malpractice "and are each individually, jointly and severally, liable for the acts and omissions of their partners." The motion court characterized the claim against the proposed four new defendants as "colorable," citing Partnership Law § 26, and granted plaintiff leave to add them.
On appeal, defendants do not argue that the amended complaint fails to state a cause of action as against the four newly added defendants, but rather that the court, in permitting their joinder, violated the law of the case doctrine, exceeded its authority by exercising appellate jurisdiction to sua sponte vacate its own order, and erroneously granted what was actually an untimely motion to reargue. The law of the case doctrine, however, is not implicated because the court did not alter a ruling by another court of coordinate jurisdiction but rather its own ruling (Wells Fargo Bank, N.A. v Zurich Am. Ins. Co., 59 AD3d 333 ). "[E]very court retains continuing jurisdiction to reconsider its [own] prior interlocutory orders during the pendency of the action" (Liss v Trans Auto Sys., 68 NY2d 15, 20 ), and may do so "regardless of statutory time limits concerning motions to reargue" (id.). Thus, even if plaintiff's motion for leave to add the four partners were a belated motion to reargue the prior order dismissing the action as against those partners for failure to state a cause of action, the court had discretion to reconsider its prior order, sua sponte, and correct it. Such discretion was properly exercised here in view of plaintiff's pro se status.
Tuesday, April 28, 2009
An attorney was summarily disbarred by the New York Appellate Division for the First Judicial Department. The court described the basis on its decision to disbar as a result of a federal felony conviction:
During his plea allocution respondent admitted that between 2001 and 2005 he, along with his father, his brother and others, engaged in an insider trading scheme after receiving non-public, material information from his father who was an employee at Taro Pharmaceutical Industries, Ltd. Respondent admitted that he knew that when he traded in Taro securities he was engaging in conduct that violated the securities law by executing options trades and by profiting on that information, and that he tipped off others regarding the inside information so that they too could profit. The criminal information to which respondent pled guilty alleged that he received $66,000 in kickbacks from a tippee for the inside information. At sentencing, respondent acknowledged that he obtained an "ill-gotten" personal profit of between $600,000 and $800,000 as a result of his participation in the insider trading scheme. He further conceded that he would lose his law license as a result of his criminal actions.
The court concluded that summary disbarment was appropriate because the federal offense was "substantially similar" to the state crime of insider trading. A news report on the underlying case is linked here. (Mike Frisch)
The South Carolina Supreme Court imposed a 90 day definite suspension of an attorney who had self-reported that he had failed to file state and federal income tax returns from 2000 to 2007. The lawyer noted that no criminal prosecution in connection with the conduct is either pending or anticipated. (Mike Frisch)
Courtesy of the very fine Florida ethics web site sunEthics is an interesting case involving improper closing argument by a prosecutor in a murder case. The Florida Third District Court of Appeal concluded that the evidence of guilt was overwhelming and affirmed the conviction. The prosecutor had contrived an incriminating dialogue between the defendant and another, that the defendant was not a "nice guy,"and that witnesses were afraid to come forward. The trial judge had compounded the error by overruling defense objections.
A reluctant concurring opinion notes:
The only viable argument in this case is that the errors were harmless. I must reluctantly agree. Inexplicably, the prosecutor in this case felt obligated to push the envelope by inventing dialogue, attacking [the defendant's] character and blaming the lack of witnesses on fear of [the defendant]. The prosecutor must have felt that the admissible evidence in this case was insufficient to convict, otherwise he would not have injected such obvious error into the proceedings.
Over the years, it has been my unfortunate experience to see a long procession of assistant state attorneys repeatedly violate clear precedent in their zeal to convict. It is either that these prosecutors are untrained, that they do not trust juries, or that they feel that their behavior has no consequences. They do not even have to face an appellate panel's questions during oral argument. If nothing else, I will henceforth publish their names so that thier questionable tactics appear in the permanent record of the Southern Reporter.
One remedial possiblity is bar discipline. (Mike Frisch)
A Louisiana hearing committee found "clear and convincing evidence of a cavalier manner of handling legal fees and delineation of representation" but no disciplinary violations in a case where the lawyer was charged, among other things, in assisting and failing to rectify client fraud. The committee recommends dismissal of the charges.
In one matter, the lawyer's incarecerated client (Alexander) told another prisoner that the lawyer would represent him for $5,000 and a Rolex watch. The client's wife borrowed the money, which the lawyer received by cashier's check along with the watch. The lawyer applied the payment to his client's fees and provided no services to the other prisoner. When the wife contacted him, he refused to return the payment and the watch. The second matter involved the same client, another prisoner, and another unreturned fee of $5,000. The fees were returned after the Bar had filed charges.
The attorney indicated that the client was president of the Louisiana chapter of the Hell's Angels. He was told by the client that "his people" would deliver money for his fees, and that he understood that the payments were for the ongoing representation of that client.
The committee found that the evidence did not establish that the lawyer knew he was being paid to represent the two complaining prisoners:
While the transactions involved are certainly susceptible to being interpreted as "suspicious," the evidence presented does not reach the threshold necessary for proof of a violation of the Code of Professional Responsibility. On its face, and against the "clear and convincing" standard, the evidence presents nothing more than justification for suspicion; taken at face value, the evidence leads only to the conclusion that Respondent was not careful about his record keeping, or the delineation of his business arrangements...There is nothing in the evidence from which we can conclude that Respondent did not in good faith believe the fees in question to have been for payment on Jesse Alexander's account.
Monday, April 27, 2009
A new opinion from the Oklahoma Judicial Ethics Advisory Panel:
Question(s): May a judge, at night and non working days, be employed in checking land records for persons engaged in oil and gas leasing operations?
Facts: The judge asks if he may be employed by his brother, who is an independent petroleum land man, in checking records at time indicated in the question, and for which he would receive compensation?
Answer(s): Yes, with restrictions.
Comment: A judge may not practice law, offer legal advice or services except in certain family matters as specifically approved in Canon 4. The question may arise as to whether the services performed by a petroleum land man in checking mineral interest owners from the land records in the office of a County Clerk constitutes legal services. The judge propounding the question advises that he has checked with the Chairman of the Oklahoma Bar Association Committee on Unauthorized Practice of Law and was advised that the Committee has never been asked to consider if working as a land man, in any capacity, is the practice of law. We note that the failure of such question being addressed does not answer the question, but would suggest that these activities have been numerous and long-standing in the State of Oklahoma and that the absence of such inquiry would indicate that the legal profession has never considered the same to be the practice of law.
It is our opinion that the compilation of ownership from these records and of itself does not constitute the ‘practice of law.’ However, if the party performing those services renders an opinion as to the ownership of those interests, this would constitute the practice of law and would be prohibited.
The Louisiana Attorney Disciplinary Board has recommended a one-year stayed suspension for unauthorized practice of law and representing a client without the authority to do so. The attorney had (as in many cases we have recently reported from various jurisdictions) been suspended for failure to fulfill CLE obligations. He was retained by a bail bonding company named "Do the Right Thing" to seek bond review for a criminal defendant. The board also concluded (contrary to a hearing comittee) that the lawyer was not authorized by the defendant to represent him: "it is clear that [the lawyer] was not authorized by [the client] to file the motion to reduce bond, and that he filed the pleading solely at the direction of the bail bond company." The board found a laundry list of violations (making the case useful to a PR professor looking for an exam hypo) but found that "the goal of protecting the public can be served by fully deferring [the] suspension and imposing a one year probation." (Mike Frisch)
A Colorado attorney was publicly censured based on his conditional admission that he had "negligently failed to terminate an attorney-client relationship when he learned that his wife was involved with a business transaction with his client. He therefore effectively entered into a business transaction with his client without appropriate disclosures. [He] also failed to make reasonable efforts to ensure that his wife/employee's conduct was compatible with his professional obligations." (Mike Frisch)
A decision today from the Massachusetts Supreme Judicial Court affirmed the conviction of a defendant already serving a life sentence who had murdered a priest convicted of child molestation. The defendant is described as follows:
The defendant founded his own ministry and church, in 2000, after a correspondence course. He designed a crest for his Church of the Chosen Ones, obtained a trademark and copyright, and wrote his own Bible. He fantasized that the Pope would make him "Saint Joseph." He stated that, before the killing, he wrote a document that was found in his cell; it stated that his mind was racing and he could not read or concentrate. He testified that this mental state commenced at the time he overheard the victim talking about a plan to abuse children by starting a mission in South America. The defendant testified that he spoke to a prison deacon about his concerns and was told that the victim could start a ministry under any religion. The defendant could not get these concerns out of his mind. During a period in the disciplinary unit in the days preceding the killing, the defendant wrote a document that contained statements that the world wants to stop pedophilia, the victims of sexual abuse want justice, Saint Joseph would do it, and the Pope would be pleased.
On the day of the killing, the defendant had planned to enter the victim's cell earlier than he did, but there were too many inmates around. At first he thought that "God didn't want it to happen," but then the correction officer opened all the cell doors after lunch. The defendant fantasized that the Pope would give him absolution. The defendant testified that he saw himself as the individual designated, by a higher power, to put a stop to pedophilia. He stated that when he was killing the victim, he was thinking about his own abuse and the victim's arrogance.
The court rejected a claim of ineffective assistance of counsel:
The defendant has not met his burden of showing that substantial conduct or omission by his counsel likely influenced the jury's decision. As the judge stated in his written decision, the defense in this case was lack of criminal responsibility. The evidence that the defendant was guilty of the murder was overwhelming, even apart from his statements, "to anyone and everyone" who would listen, that he did it and was proud of it. The defendant was the only one in the victim's cell; he had jammed the door shut; the victim was lying on the floor with a ligature around his neck that was made in part with the defendant's own articles of clothing. The defendant claims "that additional evidence should have been adduced from correction department officers and officials, as well as through or by a post-death investigation conducted by an ad hoc commission." We agree with the judge that "[w]ith the exception of his complaint that his attorney failed to introduce records or call other witnesses who may have offered testimony about his psychiatric history, none of his other complaints ... have any relevance to the issues material to the trial of this case." Moreover, as the judge stated, the defendant, his parents, and expert "were given wide latitude in their testimony concerning his past social and psychiatric history, which history was largely uncontested by the Commonwealth.... His expert was permitted to testify without limitation, to the defendant's history and the contents of any and all records of past psychological placements, examinations, observations, and diagnoses ... for support of his opinion testimony concerning the mental state of the defendant on the day of the offense." The judge's conclusion that the evidence material to his defense that the defendant claims should have been offered is cumulative or speculative is supported in the record. There was no abuse of discretion.
The case is Commonwealth v. Druce. (Mike Frisch)
The Tennessee Supreme Court has held that retained counsel who has been discharged by the client must inform the court of the client's directive as soon as discharged: "since our earliest days, our system of justice has been reluctant to force a lawyer on an unwilling client....clients should not be forced to entrust their legal matters to an unwanted lawyer. Accordingly, clients may discharge a retained lawyer whenever they cease to have absolute confidence in the lawyer's integrity, judgment, or professional competence." The focus of the court in such circumstances is not on whether there is good cause, but rather whether (i) the client understands the consequences of firing the lawyer and (ii) will be significantly prejudiced. Finally, the court must consider the impact of granting withdrawal on the orderly administration of justice.
The court vacated the judgment and remanded the matter for a hearing. If the court below concludes that the waiver of the right to counsel was knowing and intelligent, the client will be given an opportunity to retain new counsel for the appeal.
The criminal case involved charges of murdering an infant child. (Mike Frisch)
The New York Appellate Division for the Fourth Judicial Department imposed a term of suspension of two years or until federal probation is terminated, whichever period is longer of an attorney convicted of conspiracy to violate the Mann Act, which involves transportation of an individual to another state to engage in prostitution. The court determined that the offense was a serious crime but noted the attorney's "previously unblemished record and expression of extreme remorse." The suspension will also continue until further court order.
According to this report in the Daily Independent Online, the lawyer was the clerk of a Supreme Court judge who has pleaded guilty and is awaiting sentencing in the same matter. The report states that the matter arose from an investigation of "human trafficking by a men's organization known as the Royal Order of Jesters."
The Buffalo Law Journal reports on the judge's plea:
Tills admitted that in October 2005, he, along with John Trowbridge, Michael Stebick and others, drove a woman from Buffalo to Kentucky so she could be available to engage in prostitution with members of a men’s organization. Tills was a member of that organization.
As part of his plea proceedings, Tills admitted engaging in similar conduct five more times.
This link should take you to the court's web page. The case is Matter of Stebick, decided April 24, 2009. (Mike Frisch)