Monday, November 30, 2009

"Couch Of Restitution"

The Michigan Attorney Discipline Board has affirmed findings of misconduct but increased the sanction from a  120 day suspension to 180 days. The attorney had pleaded guilty to a misdemeanor assault and battery in exchange for dismissal of charges of fourth-degree criminal sexual conduct in 2001. He failed to report the conviction to bar authorities.  The conviction came to light when a former client filed a request for investigation of the attorney.

The Administrator filed charges relating to the failure to report the criminal matter, false statements on his bar dues statement that denied any such conviction and misconduct toward the complainant that involved improper touching, sexually explicit remarks and a comment that his fees could be paid on his "couch of restitution." The Administrator filed notice of intent to offer two similar acts toward vulnerable clients. The Administrator also offered evidence that the 2001 conviction (later set aside) involved improper sexual behavior directed at a client. The testimony of the 2001 victim was admitted to establish the circumstances of the offense. The "bad acts" evidence of the other two former clients also was admitted at the hearing.

The board here held that discipline could be imposed for the criminal conduct notwithstanding the order setting aside the conviction. The evidence of other acts was properly admitted:

The high degree of similarity of these separate accounts established [his] system of making sexual overtures to female clients who were seeking legal assistance in a domestic matter. These overtures occurred during a discussion of his legal fees. Both [victims] testified that [he] used the phrase "couch of restitution," and closed the blinds before making sexual remarks to them. The panel did not err in finding a commonality in [his] approach indicating a scheme, plan, or system and the panel did not err when it found that "prior bad acts" evidence was offered for a proper purpose...

The 180 day suspension will "ensure that [the attorney] is not permitted to resume his standing as a member of the profession unless he is able to establish his fitness by clear and convincing evidence." The Administrator has sought a suspension from one to three years. The attorney had a record of prior discipline.

The decision provides an interesting analysis of admission of evidence issues in the context of bar discipline. Many bar regimes (such as D.C.) have rules that allow for admission of evidence that permit consideration of information (such as hearsay) that might be excluded under civil and/or criminal rules.(Mike Frisch)

November 30, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

"Veritable Rampage" Draws Censure

A non-lawyer village court justice was censured by the New York State Commission on Judicial Conduct for a series of unrelated incidents. In one, he observed a driver allegedly fail to yield for a pedestrian, pursued in his own vehicle with the intent to make a citizen's arrest, induced the driver to pull over and displayed his town justice badge. While he recused himself from the charged matter, he was quoted about the case by print and TV reporters. In another matter, he had ex parte discussions with the mother of a defendant. In a third, he failed to disclose his close personal friendship with the Chief of Police and presided over matters in which the friend was a witness.

A dissent would remove him from the bench:

Notwithstanding this veritable rampage of serious misconduct, [the judge] escapes with a censure. Under normal circumstances I might quietly assent to the majority's lenience, even though I disagree, for fear the dissent would highlight a precedent which likely will give comfort to other wayward judges. But in this case I cannot for a singular reason: when [the judge] came before the Commission at the oral argument, he misrepresented his earlier sworn testimony and calculatedly changed his presentation to conform to the testimony of other witnesses.

(Mike Frisch)

November 30, 2009 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Abad Case

An Arizona hearing officer rejected a laundry list of ethics charges but found that the accused lawyer (who had a single instance of minor discipline in 30 years of practice) had failed to competently handle an appeal. The underlying case (the Abad case) involved claims of over 100 plaintiff that mold exposure at their apartment complex had caused injuries. The hearing officer recommended public censure and three years probation with conditions that the attorney complete 20 hours of CLE on appellate procedure, report any appeal in his cases to the State Bar and associate with experienced counsel in any appeal. As to sanction:

The mitigating circumstances in this case are overwhelming. The sanction imposed by the trial judge [$750,000] was unprecedented. It has had a devastating effect on [the lawyer], his family and his practice. It is also important to consider that the Abad case is still on appeal. It is impossible to estimate if there is any harm to the clients until the matter is resolved.

Among the charges found unproven were incidents of what were called "rude" behavior. One incident took place during the deposition of one of the attorney's experts. The attorney said "Excuse me, Do you have a shit-eating grin on your face, Cindy?" (Mike Frisch)

November 30, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Panel's Troubles No Bar To Sanction

The Tennessee Supreme Court has affirmed a hearing panel order imposing a one-year suspension in a matter involving four separate complaints. The court rejected a variety of claims, including that the sanction was excessive in light of the attorney's claim that he had acted negligently and that the "proceedings were procedurally flawed because a member of the hearing panel and a lawyer-witness were subsequently disciplined for professional misconduct in other matters."

The panel member was later suspended for failure to respond to a bar complaint. The witness was disbarred. The court found that the issue was not properly documented in the appeal but rejected the claim on the merits:

While we firmly reject [his] argument that his Panel was compromised by unlawful procedure, we conclude our analysis by emphasizing that we take seriously the integrity of attorney disciplinary proceedings in Tennessee. We regret those instances when attorneys standing in judgment of their peers are themselves subsequently found in violation of the rules that govern our profession. We aspire to a system where Panel members are of the highest ethical character and scrupulously refrain from even the appearance of professional misconduct in their own practice of law. Nonetheless, where a disciplined attorney may obtain two levels of review of the Panel's judgment, the subsequent discipline of a Panel member cannot automatically negate the outcome of all the prior disciplinary proceedings where that attorney served on the Panel. In this case...the Panel's judgment is independently supported by the decision of the other two Panel members, against whom [he] alleges no procedural improprieties.

(Mike Frisch)

November 30, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Two Accidents Lead To Suspension

The Louisiana Supreme Court has imposed a suspension of a year and a day retroactive to an earlier-imposed interim suspension. While employed with the Attroney general's office, the attorney was involved in a minor car accident in the office parking lot. She was charged with DUI and self-reported the matter to disciplinary counsel. she went into a treatment program for alcohol and executed a contract with the Bar's recovery program.

Unfortunately, there was a subsequent accident in the Belle of Baton Rouge Casino parking lot. A breathalyzer test showed a bood alcohol content of .323%, more than four times the legal limit. Because the sanction was imposed effective in May 2007, the attorney may now petition for reinstatement. (Mike Frisch)

November 30, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

An "Unfortunate Absurdity"

The Vermont Supreme Court affirmed a finding that two attorneys had violated Rule 4.1 and imposed a private admonition. The facts:

 The parties stipulated to the following facts.  Respondent attorneys were partners in a law practice and represented a client in a serious criminal matter.  During trial, a potential witness contacted them, claiming to have information that tended to show their client’s innocence.  Respondents obtained a continuance until the following day to ascertain the witness’s potential testimony.  They quickly arranged to interview the witness by telephone and to record the call.  During the call, the witness asked respondents whether they were recording the interview.  One respondent said “No,” and the other, attempting to distract the witness, added “She’s on speaker phone, so I can hear you.”  The witness later filed complaints with the Office of Disciplinary Counsel against both respondents.  The parties jointly recommended that the hearing panel conclude that respondents had violated Rules 4.1 and 8.4(c).  The disciplinary charges were premised at all times solely on the act of misleading the witness about the recording, and not on the recording itself. 

The court majority concluded that the knowing false statement about the recording violated the Rule. The violation was not premised on the surreptitous recording, which was lawful. The court concluded that the actions did not reflect on fitness to practice.

A concurring justice noted that the decsion does not deal with the complexity of undercover operations:

   It seems at least unclear whether the judicial branch, through an ethical rule, might unconstitutionally interfere with valid, and even statutory, executive branch functions directed by attorneys supervising undercover discrimination, consumer fraud, and criminal investigations that require surreptitious taping and deceptive impersonations, including those authorized by warrant.  See, e.g., V.R.Pr.C. 8.4(a) (declaring it misconduct for a lawyer to violate the rules “through the acts of another”); V.R.Pr.C. 5.3(b) & (c) (making a supervising lawyer responsible for investigator compliance with the rules and professional obligations of the lawyer).  Related separation of powers questions, as well as due process and equal protection issues, arise over judicial curtailment of otherwise legal and valid tactics available to public defender investigators looking into criminal allegations against their clients.

Not presented in an actionable context in the instant appeal, such issues remain unresolved.  Equally unresolved, then, is the potential for ethical violation by attorneys involved in law enforcement and criminal defense who, without lucre or malice, oversee entirely legal investigative strategies executed by staff or agents.  Failure of the rules to recognize and allow for justified and necessary deception in the course of law enforcement and defense investigation is reminiscent of Secretary of State Henry Stimson’s foolish prohibition of diplomatic codebreaking between the World Wars on the high-minded premise that “Gentlemen do not read each other’s mail.” Common sense might dictate that such a blind principle, like Rule 4.1 found violated in the instant case, ignores the legal and objectively legitimate demands of the real world. 

These points are raised only to lament the unfortunate absurdity of this violation and to emphasize the need for the committee to reconsider the literal application of Rule 4.1 to executive and defense investigations relating to law enforcement.

A concurring and dissenting opinion takes the majority to task for not finding a Rule 8.4(c) dishonesty violation for what is characterized as "bold-faced lying. " (Mike Frisch)

 

 

 

 

November 30, 2009 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Saturday, November 28, 2009

High Profile Disbarment

The Florida Supreme Court has accepted the consent disbarment of an attorney in the wake of a recent FBI raid on his law office. The Huffington Post reported as follows earlier this month:

Rothstein, 47, a flashy attorney who has raised millions of dollars for charities and politicians, has made no public statement since the fraud allegations surfaced earlier this week. The state Democratic and Republican parties are both returning tens of thousands of dollars in Rothstein's donations, and Gov. Charlie Crist is giving back $9,600 from his U.S. Senate campaign.

A spokesman for the law firm, Charles Jones, said the firm cooperated fully with the search and had reopened for business Thursday morning. Rothstein was removed as chief executive officer by a judge who also appointed a receiver to unravel its finances. Attorneys for investors say well over $100 million may be lost.

Attorney William Scherer, who represents a dozen investors out some $80 million, said lawsuits are in the works against banks, insurance policies and Rothstein's assets. He also plans to file lawsuits seeking the return of charitable and political contributions.

The court's web page links to the documents relating to the disbarment. (Mike Frisch)

November 28, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

"Such Action...As Is Deemed Appropriate..."

An attorney who had been subject to a public reprimand in 2007 also was required to provide the Office of Disciplinary Counsel with quarterly reports on the status of the underlying estate matter. The ODC filed charges concerning his alleged non-compliance which resulted in a finding of contempt by the West Virginia Supreme Court.

The court fashioned a sanction that took into consideration the need to bring the estate matter to a conclusion:

...we find that Respondent failed to comply with the directives of this Court set forth in the January 10, 2007, order, and, accordingly, we hold him in contempt of that order. We further hold that the appropriate sanction is to suspend his license to practice law in this State. However, because the underlying estate matter begs for an immediate resolution, we shall stay the suspension of Respondent's law license for 120 days so that the estate matter may be finally and conclusively resolved. On or before the end of 120 days, Respondent shall demonstrate to this Court that the estate matter has been fully and finally resolved. If the estate matter has been fully and finally resolved, the suspension of Respondent's law license will not go into effect. However, if the estate matter has not been fully and finally resolved, the stay will automatically be lifted and Respondent's law license shall be suspended. Because we also recognize that final resolution of the estate matter will require a ruling from the County Commission of Wood County _ over whose time frame Respondent has no control _ we order that if, for any reason, the matter is not concluded within 120 days, Respondent shall file with this Court a report setting forth in detail the reasons therefor. At that time, this Court will take such action with regard to Respondent's law license as is deemed appropriate under the circumstances.

(Mike Frisch)

November 28, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Not Disbarred But Suspended

An attorney who was disbarred in Missouri after defaulting on ethics charges was indefinitely suspended as reciprocal discipline by the Kansas Supreme Court. The proceeding in Missouri did not establish violations by clear and convincing evidence. However, the attorney was subject to discipline as a result of his failure to participate in the Kansas proceeding. (Mike Frisch)

November 28, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 25, 2009

Judge Denies Tardiness, Accuses Prosecutor Of Misconduct

A Tennessee general sessions court judge has filed an answer to charges of misconduct that deny that she was persistently late for court and explaining that late starts were the result, among other things, of her practice of providing time for parties to discuss matters before taking the bench. She admits that she hired her daughter but denies that the daughter was unqualified or overpaid for the court position. She denies improperly appointing special judges and asserts that her practices in that regard are common among judges who have not been charged with misconduct.

The answer also goes on the offensive, accusing the disciplinary counsel of selective prosecution, conspiracy to obtain confidential information and threatening witnesses.

Tennesssean.com has this report. (Mike Frisch)

November 25, 2009 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

No Ethics Charges For Investigation Of Judge

The  Grand Rapids Press has a report that no disciplinary action will be brought against an attorney based on claims of misconduct relating to his investigation of a county district court judge:

More than a dozen prominent local lawyers, including former presidents of the Grand Rapids Bar Association, filed a grievance seeking sanctions against Fischer in July 2008. The attorneys alleged Fischer [the attorney] tried to extort Servaas’ [the judge's] resignation.

The grievance commission evidently did not agree.

“That’s amazing,” Servaas said Tuesday from a vacation in Florida. “This is some political refusal of what (Fischer) did and not based on the facts.”

Among the evidence presented to grievance investigators, also based in Detroit, was the 17-minute recording made of Fischer confronting Servaas in his former chambers in Rockford, where the judge was presented with a resignation letter to sign.

The Press report notes that the judge was reprimanded. (Mike Frisch)

November 25, 2009 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Oh Shenandoah!

The West Virginia Supreme Court affirmed the grant of summary judgment to a law firm but reversed summary judgment in favor of the wife of a former firm lawyer in a case involving a dispute over the purchase of land next to the Shenandoah River. The trial court had denied summary judgment to the individual lawyer. The key facts:

This case concerns an undeveloped 6.87 acre tract of land on the shore of the Shenandoah River in Jefferson County. The appellants and plaintiffs-below, Stanley and Katherine Dunn, had a written option to purchase approximately 460 acres of farmland which encompassed the 6.87 acre tract. However, the Dunns claim that the lawyer who drafted the written option _ appellee and defendant-below Douglas S. Rockwell (“Lawyer Rockwell”) _ improperly purchased the 6.87 acre tract and concealed the extent of the purchase from the Dunns. The question we are asked to resolve is whether all or part of the Dunns' lawsuit _ against Lawyer Rockwell's wife, appellee and defendant-below Carol Rockwell, and against Lawyer Rockwell's former law firm, appellee and defendant-below Martin & Seibert _ regarding the 6.87 acre tract is barred by any statutes of limitation.

            In 2001, Hugh N. Hoover and his sister, Dianna Hoover Gray, owned approximately 460 acres of contiguous farmland in Jefferson County which bordered the Shenandoah River. In December 2001, Carol Rockwell, received title from Mr. Hoover and Ms. Gray to a three-acre parcel of that farmland along the Shenandoah River.

            In 2002, the Dunns began negotiating with Hugh Hoover to purchase the remaining Hoover/Gray farmland. Mr. Dunn could not yet afford to purchase the farmland, and so he hired his friend, Lawyer Rockwell, to draft an agreement giving the Dunns the exclusive option to purchase the farmland. At that time _ and until March 2004 _ Lawyer Rockwell was employed at the law firm of Martin & Seibert in Charles Town, West Virginia. Lawyer Rockwell drafted the option agreement and gave it to Mr. Dunn.

            On June 27, 2002, Stanley Dunn and Hugh Hoover executed the option, which permitted the Dunns to buy “460 acres more or less by survey” of the Hoover/Gray farmland for $6,000.00 per acre. The property subject to the option surrounded the three-acre parcel bought by the Rockwells in 2001. The 2002 option agreement was set to expire 12 months from the date it was executed.

            In November or December 2002, Lawyer Rockwell and his wife sought to buy additional land surrounding their three-acre parcel. Knowing that the land was subject to Mr. Dunn's June 27, 2002 option _ the three-acre parcel was bordered on one side by the river and the other three sides by the Hoover/Gray farmland _ Lawyer Rockwell orally asked Mr. Dunn if he could buy some of the optioned acreage from Mr. Hoover and Ms. Gray in order to “square up” or “round off” his three-acre parcel. Mr. Dunn agreed, and later told Hugh Hoover that this was acceptable.

            In December 2002, a surveyor prepared a map of the acreage that Lawyer Rockwell and his wife sought to purchase out of the optioned property. The map designated a 6.87 acre tract that squarely surrounded the Rockwells' three-acre residential lot, but which also extended north in a panhandle or dogleg along the Shenandoah riverbank approximately 115 feet wide and 589 feet long. The Rockwells paid with two checks _ one from Carol Rockwell and the other from Lawyer Rockwell _ and on December 27, 2002, the 6.87 acre tract was deeded solely to Ms. Rockwell. The closing on the Rockwells' acquisition of the 6.87 acre tract was handled at the Martin & Seibert law offices.

            The Dunns allege that they never agreed that the Rockwells could purchase the 589-foot long strip fronting the Shenandoah River. The Dunns also assert that Lawyer Rockwell never advised them, orally or in writing, of the survey, the purchase or the precise size and location of the 6.87 acre tract. The Dunns also assert that Lawyer Rockwell never advised them that they should seek independent advice to protect themselves with regard to the Rockwells' December 2002 purchase.

            In March 2003, Mr. Dunn asked Lawyer Rockwell to draft an extension for the 2002 option to purchase, which Lawyer Rockwell did. The written extension made no mention of the 6.87 acre tract that had been deeded to Lawyer Rockwell's wife, nor did it exclude the 6.87 acre tract from the new option. The extension extended the option end date from June 27, 2003 to August 1, 2003, when the option expired without Mr. Dunn purchasing the property. However, Mr. Dunn asserts that he and Mr. Hoover and Ms. Gray continued negotiating toward a purchase as though the option were still in effect.

            Sometime during the Summer of 2003, Mr. Dunn and Mr. Hoover negotiated a new option agreement which was also drafted by Lawyer Rockwell. The option agreement was for a 24-month period, and raised the price to $6,500.00 per acre “which the parties estimate shall contain approximately 500 acres.” Again, the Rockwells' 6.87 acre tract was not excluded from the new option written by Lawyer Rockwell. Mr. Dunn and Mr. Hoover signed the agreement on August 26, 2003, and Mr. Dunn tendered a check for $50,000.00 in exchange for the option.

            It was during this time period, in mid-2003, that events occurred giving rise to the Dunns' statute of limitation problems and to the instant appeal.

            At the north edge of the 589-foot dogleg of river front land bought by the Rockwells there was an unrelated parcel of land owned by Mr. Hoover and Ms. Gray _ but not subject to the Dunn option _ with a house. In July 2003, Henry and Dale Walter bought the parcel and house. The house, however, was exposed to flooding from the river and the Walters wanted additional land to build above the flood plain.

            Sometime in August or September 2003, Hugh Hoover approached Mr. Dunn seeking permission to sell some of the land surrounding the Walters' tract _ land which was subject to the Dunns' exclusive option to purchase _ to the Walters. Mr. Dunn says he responded (with emphasis added):

                I told him I had no problem with him adding onto the back of it, it was just a rough hillside. But I told him, also, that I did not want to give him anything between the two, the Rockwell property . . . and that house. And he looked at me real funny and said, well, Stanley, Doug [Rockwell] has already taken that . . . .


As we relate in greater detail in the discussion, infra, by no later than September 29, 2003, the Dunns learned that the Rockwells had purchased river front property subject to the 2002 option that not only “squared up” their three-acre property, but which extended far from their residence along the Shenandoah River. The Dunns state they did not conduct further investigation of the size or location of the Rockwells' purchase at that time, partly because they did not want to upset Mr. Hoover and Ms. Gray and lose the opportunity to purchase the Hoover/Gray farmland, and partly because they feared that Lawyer Rockwell might steer the Hoover/Gray farmland to another buyer.

            Lawyer Rockwell stopped working for defendant Martin & Seibert on March 31, 2004. The Dunns, however, contend that in the Spring of 2005, Mr. Dunn asked Lawyer Rockwell to prepare another extension agreement relating to the 2003 option. Lawyer Rockwell prepared the extension agreement for Mr. Dunn (but the agreement was never executed).

            In late 2005, the Dunns were financially able to purchase the Hoover/Gray farmland. On October 27, 2005, the Dunns closed on the purchase of the Hoover-Gray farmland. The Dunns allege that at the closing, for the first time, they saw the December 27, 2002, deed to Carol Rockwell for the 6.87 acre tract with an accompanying survey plat showing the 589-foot dogleg along the Shenandoah River. The Dunns contend that this is when they first learned of the survey and the precise size and location of the Rockwells' acquisition of land that was subject to the 2002 option.

The Dunns and the Rockwells then engaged in several discussions and exchanged correspondence about the 6.87 acre tract. When the Rockwells refused to give any portion of the tract to the Dunns (the Dunns appear to have offered the Rockwells the purchase price they paid plus interest), on August 21, 2006, the Dunns filed this lawsuit against the Rockwells and the Martin & Seibert law firm.

A dissent would affirm the grant of summary judgment to the lawyer's spouse (Mike Frisch)

November 25, 2009 in Clients | Permalink | Comments (1) | TrackBack (0)

D.C. Court Approves Consent Disposition

In a case that was being closely watched by those interested in the operation of the bar disciplinary system in the District of Columbia (we few, we happy few), the Court of Appeals issued an opinion today approving an agreed-upon 30 day suspension. The case, which had been opened seven years ago, involved the conduct of an attorney retained by the Hutu government of Rwanda. He admitted that he had violated his obligation to safeguard disputed entrusted funds after the RPF came into power.

A hearing committee had approved the consent disposition over a forceful dissent that expressed concern that the sanction was too light. The court, in its per curiam decision, described the limited role of the hearing committee in the consent process and discussed the implementation of the consent rule. The court noted that, as the rule is new, it was "departing from the brevity of disposition that both we and [the consent rule] expect to be the norm in these cases."

This decision is great news for those of us who believe that consent dispositions are an indispensable tool in resolving bar discipline matters in a prompt and fair manner. The decision can be found by following this link and clicking on the decision in In re Johnson. (Mike Frisch)

November 25, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 24, 2009

Calling Casey Jones

In an appeal in "a seemingly endless battle" between a county ethics commission and a former county attorney, the Maryland Court of Special Appeals has remanded for further proceedings. Two longtime county employees, the former county attorney and the former chief administrative officer, were involved as counsel in class action litigation against the county. The commission found an ethics violation and the judge in the class action denied the county's (late blooming) disqualification motion.

The court here notes that "the issues are muddled because we have two judicial trains running largely on parallel tracks, with different engineers. As we shall see, however, in this matter the tracks have crossed." The court observes that both the decisions in ethics and disqualification matters are now "set in stone." The matter was remanded for consideration of sanctions (possibly reduced fees) in the class action matter. The court concluded that principles of res judicata applied to the findings of the commission, which were upheld on appeal. (Mike Frisch)

November 24, 2009 in Professional Responsibility | Permalink | Comments (1) | TrackBack (0)

Bedrock Of Lawyer-Client Relationship

The New Jersey Appellate Division affirmed in part and reversed in part a judgment awarding the plaintiff law firm for reasonable attorneys' fees and expenses arising out of the representation of the defendant former client. The amount of the awrd was remanded to determine which fees and expenses were incurred pursuant to a retention letter exclusive of sums due under a master retainer agreement. The court sets the stage for its decision:

This case focuses on the attorney-client relationship, especially its bedrock, the retainer agreement. It is a unique and extraordinary association. The attorney-client relationship has been a fertile source for authors over the years. It has spawned books, poems, plays, and movies. Literature on this topic includes fiction and non-fiction, tragedies and comedies. To resolve this case, we are obligated to review the long-established statements and principles of law concerning the attorney-client relationship and to analyse, in particular, the attorney's obligation to his potential client in finalizing the retainer agreement.

The law firm was initially contacted by the client for advice about possible ethics violations of opposing counsel, who represented the Bank of America in litigation against the client. The client signed a retainer agreement that made reference to, but did not append, the firm's master retainer agreement. The client did not see that agreement until seven months after signing the retention latter. The terms imposed by the master retainer agreement were at issue here.

The court held that the master retainer agreement was unenforceable and that fees associated with the law firm's pro se representation of itself may not be recoverable. (Mike Frisch)

November 24, 2009 in Billable Hours, Clients | Permalink | Comments (0) | TrackBack (0)

Attention Ohio Lawyers

Important news for Ohio lawyers from the web page of the Ohio Supreme Court:

The Supreme Court of Ohio has adopted amendments that concern a lawyer’s duty to safeguard client funds and property in which third persons claim an interest. The amendments become effective Jan. 1, 2010. Justices concurred 7-0 in adopting the amendments.

The amendments to Prof. Cond. R. 1.15(d) and Comment [4] are based on a 2007 Advisory Opinion issued by the Board of Commissioners on Grievances & Discipline and recommendations issued in late 2008 by a special Ohio State Bar Association committee.

The current rule requires a lawyer to protect the interest of a third-party in client funds and property held by the client, unless the claim is frivolous. The amendments specify that a lawyer must have “actual knowledge” of a third person’s interest and that the claimed interest must be “a statutory lien, a final judgment addressing disposition of the funds or property, or a written agreement by the client of the lawyer on behalf of the client guaranteeing payment from the funds or property.”

Changes to the comment portion of the rule offer guidance about a lawyer’s ethical duties depending on whether the funds or property is in dispute and whether the client or third person’s claim to the funds or property is lawful. Where there is a dispute over interest in the funds or property, a lawyer must hold the funds or property in a trust account separate from the lawyer’s funds, until the dispute is resolved.

Based on the 16 public comments submitted during the public comment period, the Supreme Court approved three revisions:

  • The word “lawful” was inserted in the first sentence of division (d) in light of the Supreme Court’s decision in W. Broad Chiropractic v. Am. Family Ins. This change also conforms the rule and Comment [4].

  • The word “specific” was inserted in the second sentence of division (d) to clarify that an otherwise lawful claim must provide for payment from specific funds or property in the lawyer’s possession, and not from any client funds or property that the lawyer may possess. This change also conforms the rule and Comment [4].

  • Use of the word “resolve” rather than “arbitrate” in the next-to-last sentence of Comment [4]. Some viewed the use of “arbitrate” in the former rule and proposed amendment as referring to the process of arbitration.

View the final rule to access the final rule.

As disciplinary counsel will tell you, there few things more dangerous to an attorney's license than non-compliance with the duty to safeguard entrusted funds. (Mike Frisch)

November 24, 2009 in Bar Discipline & Process, Clients, Current Affairs | Permalink | Comments (0) | TrackBack (0)

Mediation Representation Not Unauthorized Practice

The Louisiana Attorney Disciplinary Board has dismissed ethics charges against an attorney admitted in New York and administratively suspended in Louisiana:

The issue is whether Respondent engaged in the unauthorized practice of law by participating as counsel for a party in mediation in Louisiana while she was certified as ineligible to practice law in Louisiana, but was licensed and eligible to practice law in New York, where she resides and operates a law practice.

The board agreed that the representation in an alternative dispute resolution process was permitted by an exception to Louisiana's rule governing unauthorized practice. The attorney was admitted elsewhere, was not disbarred or suspended ("Respondent's ineligibility in Louisiana does not qualify as a suspension or disbarment.") and was providing legal services on a temporary basis in Louisiana. The services provided did not require pro hac vice admission. The conduct involved "at most, two phone calls to the [worker's compensation office] in Louisiana." (Mike Frisch)

November 24, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Probation Failure

The Louisiana Attorney Disciplinary Board has recommended a suspension of a year and a day, which will require the attorney to serve a suspension of that length that was deferred in favor of probation in June 2005. The Office of Disciplinary Counsel moved to revoke probation in January 2008 based on an allegation that the attorney had failed to respond to a new bar complaint. A hearing was held on ODC's motion and probation was extended by a year. The probationary period expired in February 2009.

The ODC filed charges based on the client complaint that had led to the revocation hearing. The attorney (who defaulted in this proceeding) was found to have made material misrepresentations at the revocation hearing as well as client-related misconduct. The board viewed the matter as a revocation of the stayed earlier suspension and rejected as unduly harsh a hearing committee's proposed three-year suspension. (Mike Frisch)

November 24, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Monday, November 23, 2009

Failure To Disclose Criminal Past, Present Leads To Disbarment

A Colorado attorney who had knowingly provided false information on his bar admission application was disbarred by the Presiding Disciplinary Judge based on his conditional admission of misconduct. According to the linked summary, he denied that he was under criminal investigation and "provided no information concerning his prior criminal activities." In September 2009, he pled guilty to conspiracy to launder the proceeds of meth and ecstacy sales and distribution.

An earlier discussion of the matter, with additional links, may be found here from Defending People the tao of criminal defense trial lawyering  (Mike Frisch)

November 23, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Solicitation Charges Rejected But Suspension Imposed

The Louisiana Supreme Court imposed a three-year suspension  of an attorney for conduct involving a loan from and financial assistance to the client. The court also affirmed findings of conversion and commingling. The client also testified that he served as a "runner" for the lawyer soliciting business. The court affirmed findings below rejecting charges based on that testimony in light of a hearing committee's conclusion that the witness was not credible and the absence of corroborating  evidence.

The court found that the attorney had acted with a selfish motive and that there were no mitigating factors. (Mike Frisch)

November 23, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)