January 3, 2009
All-Legal System NFL Team
Posted by Jeff Lipshaw
It would be so easy to start and finish with captains Lawyer Milloy (S, Atlanta) and Ty Law (CB, NY Jets), but there is in fact an entire all-legal system (civil, family, labor, and criminal justice) team out there, and I'm not including some of the real stretches (well, maybe some, which is what accounts for Brooks Bollinger):
Kellen Clemens - QB, NY Jets
Brooks Bollinger - QB, Dallas
Lorenzo Booker - RB, Philadelphia
Travis Minor - RB, St. Louis
Derrick Ward - RB, NY Giants
Brandon Marshall - WR, Denver
Chris Chambers - WR, San Diego
Derek Fine - TE, Buffalo
Bubba Franks - TE, NY Jets
Steve Justice - C, Indianapolis
Kirk Chambers - G, Buffalo
Derrick Dockery - G, Buffalo
Winston Justice - T, Philadelphia
Donald Penn - T, Tampa Bay
Jon Runyan - T, Philadelphia
Quentin Groves - DE, Jacksonville
Tim Bulman - DT, Houston
Darnell Dockett - DT, Arizona
Ryan Pickett - DT, Green Bay
Lance Briggs - LB, Chicago
Tyjuan Hagler - LB, Indianapolis
Jon Corto - S, Buffalo
Lawyer Milloy - S, Atlanta
Darren Sharper - S, Minnesota
Ty Law - CB, NY Jets
Chris Kluwe - P, Minnesota
I think this was something that had to be said.
A Seattle Municipal Court judge was admonished by stipulation as a result of his telling attorneys to "shut up" on two occasions. One incident involved a city attorney; the other a defense lawyer. The agreed on sanction was imposed by the Washington State Commission on Judicial Conduct. The judge had taken a two day course on judicial wellness and stress management at the National Judicial College and had seen a therapist. He has served for 15 years without prior sanction.
In an unrelated matter, the commission reprimanded a presiding Municipal Court judge who had yelled a profanity at an acting police chief, called another judge a moron, and had acted in a manner toward court employees that was reasonably perceived as threatening and intimidating. (Mike Frisch)
January 2, 2009
Resume Misconduct Draws Suspension, Probation
From the January 2009 online edition of the California Bar Journal:
[An attorney] was suspended for one year, stayed, placed on two years of probation with an actual 60-day suspension and was ordered to take the MPRE within one year. The order took effect Aug. 1, 2008.
[He] stipulated that he presented an outdated resume to a prospective employer, committing an act of moral turpitude.
He left the law firm where he worked when it downsized and hired a resume writing service. However, his new resume was not ready when he heard about a job opening, so he submitted an old version, without revising the dates of his previous employment. The resume gave the impression that he was still employed.
[He] later faxed a new resume to the prospective employer but it did not clarify his dates of employment.
In mitigation, [he] has no discipline record, he cooperated with the bar’s investigation and he presented letters attesting to his honesty.
Does this strike anyone out there as unduly harsh? From the description of the misconduct, it appears that the resume was perhaps misleading but not outright false. Further, the attorney was downsized rather than terminated for misconduct. It is not the same as, say, concealing a job where the applicant had been fired for incompetence.
In D.C., we had a case (In re Hadzi-Antich, 497 A.2d 1062, decided in 1985) where the attorney received a public censure for falsifying his law school class rank on a resume. While I do not always think that D.C. gets sanction correctly (as readers well know), a sanction that does not include a suspension seems appropriate here.
I would not call this conduct involving moral turpitude which is defined as, among other things, "base, vile and depraved."(Mike Frisch)
The Final Act
The California Bar Journal summarizes a recent disbarment case that began as a reciprocal probation order from Washington State:
The disbarment is the final act in a relatively minor disciplinary history that began in 1996 when Esau failed to return a $1,700 advance fee to a client who fired him. The client sued and obtained a judgment for $1,751 that Esau paid. However, the matter went to the Washington bar’s disciplinary board, which ordered that Esau be publicly reprimanded.
As a result, the California bar filed charges against Esau that resulted in a private reproval and probation.
Esau violated his probation conditions, beginning an escalation of the discipline imposed on him. The reproval period was extended by one year, Esau received a six-month stayed suspension and two years’ probation, his probation was revoked and he received a six-month actual suspension. The State Bar ultimately sought disbarment as a result of Esau’s history of probation violations.
“This matter illustrates the serious consequences of an attorney’s extended inattention to State Bar disciplinary proceedings and his repeated disregard of Supreme Court orders,” wrote review Judge Judith Epstein for a three-judge panel.
The panel rejected a hearing judge’s finding that Esau’s alcoholism played a part in his misconduct and it did not give great weight to the three character witnesses who testified on his behalf.
Although Epstein acknowledged that the initial misconduct did not result in serious discipline, nor were any clients harmed, she wrote, “We could find no case imposing a sanction less than disbarment for an attorney who repeatedly has been called to account in disciplinary proceedings for violating conditions of probation, while at the same time violating court orders requiring compliance with rule 9.20.”
Note that the sanction was a public reprimand (apparently without a probation component ) and that California nonetheless initiated its own proceeding based on the Washington misconduct, imposed probation and here disbars for violation of the probation conditions. (Mike Frisch)
Disbarment For Traffic Offenses
The New York Appellate Division for the Fourth Judicial Department recently disbarred two attorneys for felony convictions for driving while intoxicated (In re Bailey) and leaving the scene of an incident without reporting (In re Duffy). The court did so by means of short orders that do not provide any particulars regarding the offenses or the court's sanction reasoning.
The link should take you to the page from which the orders can be accessed.
UPDATE: a comment notes (and I should know, having pointed it out many times) that there is no need for an explanation or description of the offenses as disbarment is automatic for a New York felony. (Mike Frisch)
Failure To Supervise
The Colorado Presiding Disciplinary Judge imposed a stayed 60 day suspension with probation for two years of an attorney who had failed to properly supervise the work a debt collection agency that he had employed as contractors. The actions of the debt collectors "resulted in numerous debtors feeling embarrassed, insulted and frustrated." The attorney also had knowingly failed to take action in a client matter. (Mike Frisch)
Conversion Of Funds Of Incarcerated Beneficiary Warrants Disbarment
An Illinois woman who died left her estate to her grandson, who is serving time for arson and murder with a projected release date in 2031. The estate was administered by an attorney who used a significant portion of the estate assets (approximately $78,000) for his own purposes, claiming that the father of the beneficiary had authorized his use as a series of loans. An Illinois hearing board found that the attorney's testimony in that regard was not credible and has recommended disbarment:
We did not find Respondent to be a credible witness and reject his claim that he took the funds as a loan. His testimony was contradicted by Brian [the beneficiary],who denied authorizing Respondent to use any funds for his own purposes, denied agreeing to loan money to Respondent, and denied knowing that Respondent used or borrowed any of the money. Brian’s letters to Respondent, which we regard as trustworthy, contain no reference to Respondent’s use of the funds. To the contrary, Brian repeatedly expressed his desire that the funds be preserved and invested in a safe vehicle so he would be assured of some financial security upon his release from prison.
Respondent’s reliance on William’s [the father] statements or actions to justify his use of the funds is not well founded. Respondent contended that he and William agreed in November 2002 that Respondent could use the funds and repay the estate within thirty days of demand being made. The purported agreement was not reduced to writing however, and while William attempted at hearing to confirm the agreement, we found his testimony to be confusing and inconsistent. He was not able to pinpoint the specific terms of any loan to Respondent nor did he adequately explain why, when he submitted a written request for investigation of Respondent’s conduct, he made no reference to any type of loan agreement. We find it highly improbable that Respondent would be given free access to a large sum of money without any documentation to support the agreement or terms of repayment.
We further find that even if William did consent to a loan to Respondent in November 2002, he had no authority to do so. Again, nothing in Brian’s testimony or letters to Respondent indicate that Brian had turned over control of his finances to his father at that time. In fact Brian testified that his relationship with his father was "not too hot" and in a February, 2003 letter to Respondent, Brian specifically stated that he did not want his father to handle his affairs.
An aggravating factor was the difficulty of the beneficiary in monitoring the lawyer's actions. The attorney had previously been suspended for two years. (Mike Frisch)
Attorney Sanctioned For Web Site Post
The New York Appellate Division for the Second Judicial Department imposed a five year suspension of an attorney found to have committed a laundry list of ethics violations in two matters. One involved misuse of funds entrusted to the attorney in connection with his representation of a not-for-profit tenants housing resource center; the other involved representations to and about a court in a domestic relations case where custody had been transferred from his client to her ex-husband:
The respondent represented Yevgenia Shockome, the mother in the child custody matter, and in a divorce action in the Supreme Court. The respondent wrote an article entitled, "A Call for Genia's Law by Barry L. Goldstein, Stop Family Violence," which was posted on a web site for the Battered Mothers' Custody Conference as part of a campaign to free the respondent's client, who had been imprisoned after being held in contempt by Judge Amodeo. One or more of the following excerpts from that article were dishonest, false, or misleading:
i. "Without an evidentiary hearing or any written explanation, Judge Amodeo took the children from the mother who has raised them and sent them to the abuser."
ii. "Judge Amodeo got around this in his decision by constructing a bizarre conclusion that he, the Judge, had caused the mother's PTSD."
iii. "At one point it was discovered that the court had erased two of the transcripts[,] further delaying the appeal."
iv. "The decision demanded that the mother stop therapy with her present therapist and instead use someone selected by the court."
v. "I had to make a motion to withdraw from the case in front of Judge Amodeo for medical reasons... The law requires that when a party loses an attorney for medical reasons, that she is entitled to at least a 30-day stay to obtain another attorney. Instead, Amodeo continued to make her come to court unrepresented, to face more abuse. After the 30 days has passed (with no stay) he decided that she had enough time to find an attorney."
vi. "The police were called and they found that the supervisor had attacked the mother and child."
viii. "Judge Amodeo called numerous conferences to attack and berate the mother for interfering with the phone calls and the father's relationship with the children."
The court rejected the following contentions:
In determining the appropriate measure of discipline to impose, the respondent asks the Court to consider, with respect to the escrow violations, that they were "technical errors," that "he was just an honest attorney attempting to help others," and that he has since corrected his ways. The respondent's witnesses testified to his reputation for cooperation, honesty, and sincerity.
While the respondent contends, with regard to the charges relating to the Shockome matter, that these disciplinary proceedings were brought by the Grievance Committee in retaliation and as a penalty for his criticism of Judge Amodeo and the courts, we find no basis for such a contention. To the contrary, we find the respondent's utter failure to appreciate the fact that his conduct exceeded the bounds of propriety as a courtroom advocate, his complete lack of remorse, and the pervasive nature of his deceptive conduct to be aggravating factors. Irrespective of the respondent's sincerity in his beliefs, his overzealous behavior which took the form of disparaging remarks on the court, false accusations about Judge Amodeo disseminated in a public forum as part of a campaign to pressure the court into changing its rulings, and noncompliance with multiple court orders, truly constituted conduct prejudicial to the administration of justice.
The attorney had no record of prior discipline.(Mike Frisch)
December 31, 2008
California Test Takers Oppose Disclosure
The California Bar Journal reports that 23 persons who have sat for the California bar examination have filed a motion in opposition to the lawsuit of Professor Richard Sander and others seeking access to data on exam takers. The web page entry states that:
The proposed intervenors, who are mostly Latino and African American, argue that they provided such information only because they were promised the information would be used for internal purposes only and not released to anyone outside the State Bar.
They said that while they seek the same judicial result as the State Bar, they also “have an independent, substantial and direct interest in the outcome of this case and in making sure that they can be heard.”
If Sander and the others win their suit, the 23 bar takers’ “guaranteed right to privacy under the California Constitution and FERPA [The Family Educational Rights and Privacy Act] would be violated by the disclosure of their personal, private information without their consent, and Respondents [the State Bar] would be required to breach written contractual promises of confidentiality that they made to Proposed Intervenors to obtain the information.
The State Bar, the motion, said, “is legally and morally bound to keep it confidential.”
A board recommendation for a one year suspension of an attorney was accepted by the Wyoming Supreme Court. The attorney had been on an interim suspension and had failed to appear in several matters.He also had been arrested in possession of marijuana.
After he had failed to respond to bar proceedings, an attorney was appointed to represent him who was unable to locate him and opined that he may suffer from psychological problems and had moved out of state. The board had held a hearing on November 14, 2008 and filed its report less than two weeks later. The court issued its own decision today effective January 2. (Mike Frisch)
A Batch Of Dissents
The year of the West Virginia Supreme Court of Appeals has ended with a series (seven, by my count) of dissents and one reluctant concurrence from Justice Starcher. In a case involving a hospital's subrogation claim:
I dissent because, in my 12 years on the appellate bench, I have too often seen arcane procedural decisions like this one flow forth from this Court. These decisions brilliantly and eloquently describe the trees, while failing to recognize the surrounding forest.
These kinds of decisions may be technically correct, but they wholly miss the public policy waves that will ripple from the Court's decision...
Let me put it another way: the majority's decision is one more brick in a wall designed to keep injured plaintiffs from seeking justice in the court system. The majority opinion allows company health insurers to turn a simple, state-law tort suit over a car wreck into a federal preemption case revolving around the unfathomable morass called ERISA. It is my belief that this Court should always work to improve access to the Courts and to simplify the administration of justice. Justice should not be determined by the size of one's checkbook, and whether one can hire the most lawyers to create or navigate an administrative maze. But that is exactly what the majority opinion encourages.
The use of the word “preemption” in today's courtroom is an obscenity _ and I reach that view of today's world after 32 years on the trial and appellate bench. Parties who seek to preempt the effect of state law through the application of federal law are oftentimes not looking for justice or fairness _ they are looking to avoid responsibility. I cannot accept that Congress intended for most federal laws, including ERISA, to be vessels of absolution for wrongdoers. State laws designed to stimulate responsible behavior by dependable citizens, state laws designed to punish and correct transgressions, and state laws designed to hold citizens accountable for their actions, are not supposed to be wholly suppressed merely by a litigant muttering the word “ERISA.” But the majority's opinion is one step toward making such wholesale preemption of state law a reality.
New Code For Ohio Judges
The Ohio Supreme Court has announced the adoption of a revised Code of Judicial Conduct, effective March 1, 2009. The court's web page highlights some of the new provisions:
- A rule that bars a judge or judicial candidate from making any pledge, promise or commitment inconsistent with the impartial performance of judicial duties. The former code precluded pledges, promises, or commitments and also statements that appeared to commit the judge or judicial candidate with respect to matters coming before the court.
- A rule that allows judges to reference their political party affiliation in campaign advertising in primary and general elections.
- Rules to allow a judge to make reasonable accommodations for self-represented litigants without violating the standards of impartiality and fairness.
- A rule that permits judges to encourage and facilitate pro bono service by Ohio lawyers.
- New provisions that provide guidance to judges who preside over “specialized dockets” such as drug courts or mental health courts.
- A rule that outlines a judge’s responsibility to report others’ disability/impairment or professional misconduct and a requirement to cooperate with disciplinary authorities.
- A rule that adds two additional standards that must be met to engage in an extrajudicial activity and restricts to incidental the use of court property or personnel in relation to the activity.
The announcement links to the new Code. (Mike Frisch)
December 30, 2008
Sanction Disagreement For Sex Offense
An attorney who was convicted of misdemeanor attempted criminal sex act in the third degree as a result of his participation in sexually explicit chat room conversations with a person that he believed was a 13 year old girl was suspended for at least three years by the New York Appellate Division for the First Judicial Department. The factors that the court found justified a sanction other than disbarment:
Upon our review of these precedents, and our consideration of the nature and severity of respondent's offense, the aggravating and mitigating circumstances, and the impact of such offense on the bar and public, we conclude that the Hearing Panel's recommendation of a suspension of three years, or until the conclusion of respondent's probationary period, whichever is longer, is appropriate. As noted, misdemeanor convictions involving sexual solicitation of minors that do not involve sexual contact generally result in a suspension, not disbarment. Further, even if we agreed with the dissent that the offense, by itself, would ordinarily require disbarment, the substantial and credible mitigation evidence offered by respondent in this case requires us to consider a lesser sanction. From the beginning, respondent has admitted responsibility for his actions and has taken "uncommon" efforts to rehabilitate himself. After his arrest, he voluntarily entered sex offender treatment and all evidence in the record supports the therapist's opinions that such therapy appears to be working and that the likelihood of respondent repeating the misconduct was "low." Further, respondent cooperated with the criminal investigation and with Committee staff in their investigations, and he has no prior disciplinary record.
As the majority notes, a dissent would impose disbarment and sets out the circumstances in greater detail:
It is uncontested that in July 2004, while using his law office computer, respondent, then thirty-years old and a patent lawyer, logged onto an internet instant-messaging service and entered a chat room specifically targeting "older men and younger women." He commenced an online conversation with a female who claimed she was thirteen and who purportedly lived with her mother on Long Island but who was, in fact, a police officer. The chat room was "sexually oriented" and there was "significant sexual content" in the six separate conversations that followed over a period of three months. On October 16, 2004, after three months of these sexually explicit conversations, respondent, in further online conversations, arranged to meet the girl the next day at the Ronkonkoma train station in Suffolk County. They exchanged photos over the internet to ensure that they could identify each other so as to consummate their pre-arranged sexual liaison.
On October 17, 2004, respondent traveled on the Long Island Railroad from Manhattan to Ronkonkoma, admittedly "to engage in an oral sexual act" with a female whom he believed to be a thirteen-year-old girl. Upon his arrival he was arrested. At that point, he learned for the first time that the thirteen-year-old girl with whom he had anticipated having sex was actually a Suffolk County police detective.
The dissenting justice decries the random choice of sanction with the following footnote:
This seemingly random assignment of sanction recalls Justice Scalia's dissent in Dickerson v. United States (530 U.S. 428, 455, 120 S.Ct. 2326, 2342, 147 L.Ed.2d 405, 427 ): "The issue, however, is not whether court rules are mutable'; they assuredly are. It is not whether, in the light of various circumstances,' they can be modified'; they assuredly can. The issue is whether, as mutated and modified, they must make sense. The requirement that they do so is the only thing that prevents this Court from being some sort of nine-headed Caesar, giving thumbs-up or thumbs-down to whatever outcome, case by case, suits or offends its collective fancy." The instant case demonstrates the danger of this Court becoming, to paraphrase Justice Scalia, a five-headed Caesar.
Maine Amends Admission Rules
Effective January 1, an amendment to the bar admission rules in Maine will no longer require an applicant to have graduated from an accredited college. The explanatory comment notes that the continued requirement that the applicant have graduated from an ABA accredited law school satisfies any concern about the quality of his or her educational background. (Mike Frisch)
Neglect Of Appeals Leads To Suspension
An attorney who had neglected two criminal appeals before the United States Court of Appeals for the Sixth Circuit was suspended for one year with six months stayed on good behavior by the Ohio Supreme Court. The decision is summarized on the court's web page:
The Supreme Court of Ohio has suspended the law license of attorney Daniel S. Dice for one year, with six months of that term stayed on conditions. Dice, who currently resides in New York City, has been registered with the Court as inactive since July 2006.
The Court adopted findings by the Board of Commissioners on Grievances & Discipline that Dice violated multiple attorney discipline rules by neglecting the cases of two criminal defendants he was appointed to represent in cases before the U.S. Sixth Circuit Court of Appeals. In one case involving a prisoner incarcerated for a felony offense, Dice delayed filing an appellate brief for seven months and then caused multiple additional delays in the case that ultimately required the court to appoint a replacement attorney. In the second case, Dice failed to appear for the scheduled oral argument of his client’s case before the Sixth Circuit.
The Court agreed with the disciplinary board’s findings that Dice’s conduct violated the Disciplinary Rules that prohibit neglect of an entrusted legal matter, intentionally causing damage to a client in the course of a professional relationship and engaging in conduct prejudicial to the administration of justice. In addition, Dice was found to have violated the state bar governance rule that requires lawyers to cooperate in the investigation of misconduct.
Failure To Timely Disclose DUI Prevents Admission
The Maryland Court of Appeals denied bar admission to an applicant who failed to promptly update his application with information concerning an arrest for DUI and related offenses that had occurred after he had filed his initial application but prior to being sworn in. He was sentenced to a nine day term of imprisonment. Shortly after his release, the applicant met with a member the character committee and did not mention the incident. After he was notified that he had passed the bar, he submitted documents that reflected the conviction.
The court found that he had failed to make timely disclosure of the arrest and conviction and that his "purported intent to ultimately reveal" the information was irrelevant.
It is highly unlikely that the conviction would have prevented (although it may well have delayed) admission. The lesson is one that we have regularly emphasized on this blog: when in doubt (or not), disclose, disclose, disclose. The additional lesson here is not to wait. (Mike Frisch)
December 29, 2008
Happy New Year!
Posted by Jeff Lipshaw
Over at Volokh Conspiracy, they are having a grand debate on whether Happy Holidays should or should not replace Merry Christmas. One of the reasons I like Christmas going by is that we can all agree on Happy New Year!
From the Lipshaws, Happy New Year! Thanks for your readership in 2008, and all the best in 2009 (it's gotta be a lot better than this past year)!
MyShingle.com Meets Wave Energy
Posted by Jeff Lipshaw
If I make it through the Wall Street Journal and the New York Times before finishing my coffee and oatmeal, I read the Boston Globe (it's a slightly longer read than the Indianapolis Star, but not by much). There was an article today about a company developing wind and wave energy farms in the ocean off Nantucket and Block Island, and who should I find quoted but our friend, Carolyn Elefant, of MyShingle.com, demonstrating that solo practice need not be unsophisticated practice. Here's the relevant portion:
Carolyn Elefant, a lawyer based in Washington, D.C. who has advised ocean renewable energy developers for 15 years, says that in order to construct a wave farm, Grays Harbor Ocean Energy Company would also need to secure a lease from the Minerals Management Service. Elefant said the regulatory process remains unclear in a way that gives companies the ability to "game" the system by potentially staking a claim to certain waters through one federal process that may be quicker and then selling those rights to another developer.
The permit applications, "should send a warning signal to the industry, to the agencies, to the Hill that this is an issue that needs to be addressed," she said.
Acupuncture Bill Insufficient To Prove Mitigation
The Washington Supreme Court imposed a nine month suspension with a requirement that the attorney participate in practice management counseling and refund a $500 unearned fee to a client. The court found insufficient mitigation to warrant a lesser sanction:
...the hearing officer found Behrman's evidence of depression -- the
testimony of Behrman and two friends, along with a bill from Behrman's
acupuncturist, allegedly for treatment of depression -- to be not credible. CP at 164.
Therefore, Behrman failed to show his personal or emotional problems by either a
clear or a simple preponderance of the evidence.
...Behrman argues that the hearing officer erred by requiring expert
testimony of his depression and discounting the evidence of acupuncture treatment for
his depression. However, the hearing officer simply stated that Behrman had not
presented expert "or other credible" evidence, indicating that the evidence Behrman
had presented was not credible. Id. Given that Behrman presented no credible
evidence of his depression, the hearing officer's rejection of depression as a mitigating
factor was supported by the record.
The court found the imposition of the practice management copndition appropriate even where there was not evidence of mental or emotional problems. (Mike Frisch)
Michigan Decision Criticized
Professor Larry Dubin of University of Detroit Mercy Law School has an opinion piece in Detroit News.com on the recent Michigan Supreme Court decision overturning a Attorney Discipline Board order imposing discipline for failure to return an unearned fee. Dubin's analysis is spot on:
The Supreme Court's holding in this case makes new law that favors the rights of lawyers to keep money from clients even for services that they don't perform. The decision will create a financial disincentive for clients to exercise their right to fire lawyers or discontinue services because they can't recoup their money to hire a new lawyer.
This decision ushers in a new era that is very hostile to the interests of clients. Under this court ruling, the funds paid to a lawyer for future services will not be returned even when unearned as long as the lawyer slips in the term "nonrefundable" and "minimum fee" in the agreement.
This decision is likely to increase the number of grievances against lawyers and the cynicism that many members of the public will have toward lawyers. Consumers will feel cheated by lawyers being able to keep their money without performing the agreed-upon legal services.
Critics of lawyers sometimes state that a lawyer has a license to steal. The Attorney Discipline Board's ruling challenged that cynical notion by holding that a contract provision written by a lawyer cannot negate an attorney's ethical duties to a client. The Michigan Supreme Court decision unfortunately creates public cynicism toward lawyers.
I hope the Michigan Supreme Court will reconsider its decision in light of the adverse consequences consumers will experience.
Dubin is a former chairman of the Michigan Attorney Discipline Board. I use his wonderful "Legal Heroes" film in my last professional responsibility class every semester, as I find it to be a great way to inspire rising lawyers to see the possibility of using the law to further the public good after they have been learned Rules 1.1 to 8.5.
We had reported both the board and court's decisions. (Mike Frisch)