March 20, 2009
Disbarred Lawyer Sanctioned For Unauthorized Practice
The Ohio Supreme Court web page reports a significant sanction for unauthorized practice of law:
Brown, also known as B. Andrew Brown, B.A. Brown and Amir Jamal Taurab, was previously licensed as an attorney in New York but was disbarred in 1992 and has never been admitted to practice in Ohio. He has been the subject of three prior complaints of alleged unauthorized law practice in Ohio dating back to 1992. Brown also has an extensive criminal record including multiple felony convictions in 1995 for grand theft, forgery, uttering (presenting fraudulent instruments for payment), and tampering with records based on conduct related to his unauthorized practice of law. In January 2003, he pleaded guilty in Cuyahoga County Common Pleas Court to a 21-count indictment including six counts of theft, six counts of false representation as an attorney, seven counts of passing bad checks, one count of forgery, and one count of uttering. In June 2003, Brown pleaded guilty to two counts of forgery in Portage County Common Pleas Court.
In today’s decision, the Court adopted findings by the Board on the Unauthorized Practice of Law that Brown used business cards and stationery listing himself as “B. Andrew Brown, Esq.” and identifying his business as “B. Andrew Brown & Associations, L.L.C.” to mislead others into believing that he was a licensed attorney. The Court agreed with the board’s findings that Brown accepted fees from and gave legal advice to five persons who believed he was an attorney; prepared and filed legal documents in various courts on behalf of those persons; and represented himself to other attorneys, courts and other parties in those cases as the legal representative of his “clients.”
In imposing the maximum $10,000 civil penalty for each of Brown’s five current violations, the Court noted Brown’s flagrant disregard of its 2003 injunction for similar conduct, his continued involvement in “a pattern of deception and chicanery,” and the significant harm he caused to several of the persons who trusted him as their attorney by abandoning or mishandling their legal matters.
The court's decision is linked here. (Mike Frisch)
Fire Leads To Conviction, Revocation
From the web page of the Ohio Supreme Court:
Because the professional misconduct charges against McAuliffe arose from his criminal convictions, the Board of Commissioners on Grievances & Discipline granted his request to stay its disciplinary proceedings against him until his appeals contesting those convictions had been adjudicated in the federal court system. That process was finally completed in late 2007, when the U.S. Supreme Court declined to review a ruling by the Sixth Circuit Court of Appeals affirming his convictions.
In today’s decision, the Court adopted the commissioners’ findings that McAuliffe had violated the state attorney discipline rules that prohibit illegal conduct involving moral turpitude; conduct involving dishonesty, fraud, deceit or misrepresentation; conduct prejudicial to the administration of justice; and conduct that reflects adversely on an attorney’s fitness to practice. The Court also found violations of the state judicial conduct rules that require judges to comply with the law at all times and to avoid impropriety.
In affirming the board’s recommendation of permanent disbarment as the appropriate sanction, the Court reiterated its holding in a 1998 judicial discipline case that: “When a judge’s felonious conduct brings disrepute to the judicial system, the institution is irreparably harmed. ... By this sanction, we aim to protect both the public and the integrity of the judicial system itself.”
The court's opinion is linked here. (Mike Frisch)
March 19, 2009
Stop Writing When Time Is Called
The New York Appellate Division for the Third Judicial Department declined to admit an applicant for admission who had passed the February 2005 New York bar examination. The character and fitness problem related to a finding of misconduct in taking the July 2005 Michigan bar examination. The applicant had continued writing after time had been called.
The court here denied the application for admission subject to renewal if the applicant is able to obtain admission in Michigan. There is an important lesson here for bar exam takers: carefully follow the rules of the road. It has been four years since this applicant passed the New York Bar and the question whether or not admission will be granted remains open. (Mike Frisch)
A case decided today by the Massachusetts Supreme Judicial Court holds:
It is well settled that an insured is entitled to recover reasonable attorney's fees and expenses incurred in successfully establishing the insurer's duty to defend under the terms of the policy. See Preferred Mut. Ins. Co. v. Gamache, 426 Mass. 93, 98 (1997) (Gamache ). What happens when the party incurring attorney's fees and expenses to establish the insurer's obligation to defend is not the insured but a different insurer that has defended and provided coverage to the insured? That is the question raised in this case. We answer that the exception to the American Rule in Gamache and its progeny does not extend to allow the prevailing insurer recovery of its attorney's fees associated with an action brought to establish the defense and coverage responsibility of another insurer.
The court found that a contrary Maryland decision was not persuasive on public policy grounds. The case is Callahan & sons, Inc. v. Worcester Insurance Company. (Mike Frisch)
Lawyer-Juror's Article Leads To Reversal Of Judgment
The New Jersey Appellate Division reversed an $876,000 plaintiff's verdict in a slip-and-fall case where the plaintiff had fallen while looking for pantyhose in aisle five of a supermarket owned by the defendant. The court did not conclude that, standing alone, the "antics" of plaintiff's counsel required that the trial court grant the defendant's mistrial motion. Rather, the jury foreperson was a New Jersey State Senator, full-time law professor and lawyer who had published an article in the New Jersey Law Journal about his experiences serving as a juror. The defendant contended that the article "disclosed that he improperly influenced the jurors and that there was apparent misunderstanding of the jury charges."
After the article was published, the defendant sought a new trial. At a hearing, the lawyer-juror contended that he had overstated his influence over the other jurors. The court here decided that "we cannot so easily accept his assertion," noting that several other jurors had testified that he had influenced the discussion of damages and that they were aware of his legal background.
The court thus rejected the trial court's finding that there was no evidence of jury misconduct: "...our review of the entire record convinces us that [the lawyer-juror's] explanaltions to the jurors had a 'tendency' to influence the verdict. That 'tendency' coupled with the cumulative trial errors, deprived defendant of a fair trial." (Mike Frisch)
No Malpractice For Reasonable, Tactical Litigation Decision
The District of Columbia Court of Appeals affirmed an order granting summary judgment to Finnegan Henderson LLP in a case where former client Biomet Inc. had sued for legal malpractice. Biomet, a manufacturer of orthopedic devices, alleged that the law firm had failed to preserve a constitutional challenge to excessive punitive damages resulting in waiver of the issue. The court agreed with the trial court's conclusion that the law firm had "made a reasonable, tactical litigation decision involving an unsettled point of law..."
The underlying case was a lawsuit against Biomet for patent infringement that resulted in a compensatory award of over $7 million and $20 million in punitives. Finnegan "did not appeal the punitive damage award as unconstitutional [in the initial appeal] because the ratio of punitive to compensatory damages after the initial trial was only 3-1; and the jury had found Biomet's conduct to be particularly reprehensible making such an argument extremely difficult."
The compensatory damages ultimately were reduced to $520, which persuaded the district court that a 38,000-1 ratio was unconstitutionally excessive. The district court thus reduced the punitives to $52,000. On appeal, the full punitive damage award was reinstated based on the conclusion of the Federal Circuit that Biomet's right to seek relief from the punitive damages had been waived.
The court here explains and applies the "judgmental immunity" doctrine of legal malpractice law:
Because there was a substantial question, as to whether a constitutional challenge to punitive damages had to be raised during the initial appeal when the punitive damage award at that time was not unconstitutionally excessive when compared with the compensatory damage ward, and because there was no clear precedent one way or the other prior to the Federal Circuit's opinion in the underlying case, and thus, reasonable attorneys could disagree, we are satisfied that, as a matter of law, there was no legal malpractice in this case.
March 18, 2009
For Better Or Worse, For Richer Or Poorer
The Tennessee Board of Professional Responsibility censured an attorney who had accepted an accident case on referral from an accident resolution company. The referral violated Tennessee RPC 7.6 (b) (referrals from imtermediary organizations). Further, the attorney's written retainer agreement contained this provision: " Client understands and agrees that Client may be dissatisfied with said outcome or result and that client may be in a worse or poorer legal position at the termination of this representation as a result of the attorney's efforts." This provision was deemed to violate the prohibition against prospective limitation of the attorney's malpractice liability.
Do marriage vows purport to prospectively limit liability? (Mike Frisch)
Disbarment For Post-Suspension Practice
The Maryland Court of Appeals held that disbarment was the appropriate sanction where an attorney had engaged in unauthorized practice after suspension: "...the Court, as the promulgator and guardian of the proper standards for the practice of law, must act decisively where, as here, a suspended lawyer continues to practice law in violation of the order of this Court. Thus, under the circumstances, the only reaonable sanction is disbarment."
The attorney had handled a foreclosure action and appeared in court on behalf of a client. The court overturned the legal conclusion of the hearing judge that the conduct did not violate Maryland Rule 8.4 (b) & (c). Unauthorized practice is a criminal violation that adversely reflects on fitness to practice and thus violates both subsections of the Rule. (Mike Frisch)
The Illinois Review Board affirmed a finding that an attorney had not engaged in a concurrent conflict of interest in representing two defendants in an eviction action. He had only communicated with one of the clients, who it turned out was defrauding the other client. The second client hired her own attorney, thus resolving the issue. The board agreed with the hearing panel that the attorney had no basis to believe that the interests of the two clients were in conflict:
The evidence showed that Fisher [opposing counsel] told Respondent in May 2004 that Sparks was "a bad guy" and sent Respondent a copy of an order from the federal district court directing Sparks to stop holding himself out as the landlord and collecting rents for a property in South Holland. Respondent testified that he considered Fisher’s comments about Sparks to be posturing that often occurs in his cases. Fisher admitted that he had no personal knowledge regarding where Sparks lived or whether he was holding himself out as the owner of the Saginaw Avenue property. Rather, Fisher suspected that Sparks might be doing so. Given Fisher’s lack of knowledge regarding Sparks’ living arrangements, his comment to Respondent and the order pertaining to a different property was not sufficient to establish as a matter of law that Sparks was defrauding Sims [the second client] or that Respondent had knowledge of any fraud against Sims that would give rise to a conflict of interest.
The board concluded that the lawyer's failure to consult with the second client and making settlement overtures absent such consultation "reflected poorly on the legal profession" and merited the imposition of a public censure. (Mike Frisch)
Suing Complainant Results In Discipline
In a matter of first impression, the Louisiana Supreme Court held that an attorney could be subject to professional discipline for a violation of the immunity provisions of the rules of disciplinary enforcement. The provision provides immunity from civil suits to a complainant or witness in a bar discipline proceeding. The court held that the provision creates an absolute privilege that immunizes the actor from suit "no matter how wrongful the [complaint] might be..."
The lawyer had been the subject of a series of three complaints from a dissatisfied client who also happened to be his sister. As a result, he filed a civil defamation action against her. The court agreed with the conclusion below that the immunity provision rendered the suit frivolous. The court further noted that, even if the defamation suit was not frivolous, its filing was conduct prejudicial to the administration of justice.
The court imposed a public reprimand. The violation was a knowing one and had harmed the sister by forcing her to defend the action. The attorney sincerely believed that his actions were permissible "making any finding of lack of remorse inappropriate." The court noted that he had represented his sister at his parents urging and had sued her "in an attempt to put to an end to what the ODC determined to be baseless complaints on the part of his former client." He had no disciplinary record in 20 years of practice.
The court has a useful discussion of the history of the immunity provisions that are in force in most jurisdictions. This case is worth a read. (Mike Frisch)
March 17, 2009
"We Have Met Madoff and He is Ours"
Posted by Jeff Lipshaw
I'm speaking at a University of Dayton Law School symposium entitled "Fallout from the Bailout" on Friday, March 20, and have posted on SSRN the essay on which the talk is based: Disclosure and Judgment: "We Have Met Madoff and He is Ours."
This short essay addresses the role of securities regulation of mortgage-backed in the present financial crisis. While there is certainly a role for securities regulators to play in curing systemic flaws that contributed to the present situation (for example, the regulation of credit rating agencies), the federal system is primarily based on disclosure, not the merit of the underlying security. My view is that the problem here is not the availability of information in the markets for these securities, now or in the past, but judgments made with respect to that information. To paraphrase Kant, judgment without information is empty; information without judgment is blind. Information without judgment gives us bubbles; judgment without information leaves us at the mercy of Madoffs.
In short, I'm a "more disclosure regulation" skeptic, at least as to these securities. Following the dictum that philosophers think very deeply about things that are perfectly obvious to most people, this essay explains why I'm a skeptic.
ALI-ABA Offers Two Ethics CLEs March 24 and March 31, 2009
Posted by Alan Childress
By telephone or audio webcast, ALI-ABA has two upcoming CLE programs of interest to those following legal ethics or needing ethics hours:
- Lawyer Ethics and Risk Management in an Economic Downturn, Tues., March 24, at 1:00 pm eastern.
- Confidentiality and Attorney-Client Communications, Tues., March 31, 2009, also 1:00 eastern.
The Second Time Around
An attorney whose previous disciplinary case made him famous--James Himmel--is the subject of fresh findings of misconduct by an Illinois hearing board. Unlike the groundbreaking case imposing discipline for failure to report the misconduct of his client's prior counsel, the present case involves garden variety neglect:
The hearing board recommends a 30 day suspension. (Mike Frisch)
New IOLTA Rules Proposed For D.C.
The District of Columbia Bar's disciplinary rules revision committee has proposed amendment to Rule 1.15 with the stated goal of increasing revenue generated by IOLTA funds. A summary of the proposed changes:
- Change the existing “opt out” IOLTA program into a comprehensive program in which every D.C. Bar member must participate, regardless of where the member principally practices.
- Exempt a lawyer from the requirements of the IOLTA program when the lawyer is required by any tribunal, or by a foreign jurisdiction in which that lawyer principally practices, to follow a contrary rule about particular trust accounts. This would include requirements of a foreign jurisdiction’s IOLTA Program where the lawyer is participating either by failing to “opt out” or for affirmatively “opting in.” To the extent that Rule 1.15 does not resolve a multi-jurisdictional conflict, the general conflict of laws provisions of Rule 8.5 will govern.
- Require lawyers to advise the Bar Foundation of the opening and closing of a D.C. IOLTA Account, and report and periodically certify to the Bar Foundation compliance with, or exemption from, the IOLTA requirements in a manner and form established by the Foundation. (The Rules Review Committee did not analyze this part of the Foundation’s proposal.)
- Require that banks that wish to qualify as “Approved Depositories” -- institutions where lawyers are allowed to open and maintain client trust accounts -- agree to provide certain interest rates on IOLTA accounts (rate comparability).
- Create a new subsection of Rule XI of the D.C. Court of Appeals Rules Governing the Bar that would address the requirements for banking institutions with IOLTA accounts
- Delete in their entirety existing RPC Rule 1.19 and Appendix B with appropriate provisions from those rules relocated in RPC Rule 1.15 and Rule XI.
Return To The Fold Proposed
A Louisiana hearing committee has recommended a one year suspension retroactive to a suspension imposed in 1997 and two years probation when a final order is issued, in a case involving multiple acts of misconduct including concersion, "stiffing" health care providers and failing to show up for a trial wherein his client faced second-degree murder charges. The violations had occured while he was addicted to alcohol and cocaine. He persuaded the committee "that his recovery from these addictions has been genuine, consistent, continuous, and sustained for 11 years...Indeed, his recovery has been inspirational."
The committee struggled with its sanction proposal, noting that:
[t]here is no shortage of ethically challenged attorneys, and it can be forcefully argued that society and our profession will be better served by a severe sanction...On the other hand, the Committee finds [his] remorse and recovery to be no flash in the pan. He has been sober for 11 years, a model citizen, and leader for most of those years, and is by all accounts unlikely to stray from the path he has trampled while shouldering the burden of his misconduct and resulting shame.
The committee noted that his return to practice will increase the likelihood of restitution to his victims. (Mike Frisch)
The Louisiana Attorney Disciplinary Board has recommended the disbarment of an attorney for misconduct in representing clients in a proposed class action lawsuit after class certification had been denied. The board found that the attorney had:
...violated duties to his clients, and to the legal profession... [he] negotiated for a settlement without his clients' prior consent, then he withheld essential information about the settlement from them. He held the most basic information about the total settlement amount which was contained in the settlement document, but he hired 'ethics counsel' to deal with the clients' requests for information through [his] lies to his own 'ethics counsel,' the information was withheld from the clients for months.
The board found record support for a number of aggravating factors. Despite his claim of a clean disciplinary record, he had three prior admonitions for " some of the very types of misconduct he committed in this case." His contention that he has borne the brunt of the violations alone did not move the board, which noted the travails of New York co-counsel Melvyn Weiss.
The board concluded:
...disbarment is the baseline sanction for [his lack of candor to his clients, his attempts to keep key information from them, and his efforts to obtain a fee for himself and his co-counsel which was unreasonable because it comprized money properly belonging to-yet hidden from-his clients.
Competent To Stand Trial
In an opinion issued today, the Indiana Supreme Court affirmed the conviction of a defendant who had claimed denial of his right to self-representation. the defendant was found competent to stand trial but denied his request to represent himself because of his severe mental illness. The case (Indiana v. Edwards) had been remanded from the United States Supreme Court.
The court here concluded that the record established that the defendant suffered from a severe mental illness that rendered him incompetent to conduct the trial proceedings by himself. In addition to the conclusions of mental health professionals, the defendant "produced a litany of disorganized and incoherent motions" to the trial court. Although the mental health evidence was in conflict, "the trial court had before it the record of erratic performance that gave no confidence that whatever Edwards's state as of a given moment, it might be a transient condition...these circumstances support the trial court's determination that Edwards suffered from severe mental illness such that he was not competent to represent himself." (Mike Frisch)
Recovery And Readmission
An Illinois hearing board has recommended that a disbarred attorney be reinstated. The attorney had become addicted to crack cocaine and been disbarred in Tennessee for illegal drug use (he was never convicted of a drug offense), practicing law while on interim suspension for drug use and accepting a fee for services while suspended. Reciprocal disbarment was imposed in Illinois based on the Tennessee action.
Here, the board finds that the attorney has overcome his addiction:
After Petitioner was disciplined by the Tennessee court, he successfully completed an intensive in-patient drug rehabilitation program, as well as an aftercare program. The evidence established that he has abstained from drug and alcohol use since 2000, and at the present time attends 12-step meetings on a regular basis and participates in the LAP program. Witnesses who have had significant contact with Petitioner and are aware of his recovery efforts testified he is committed to sobriety. Dr. Stafford Henry [the Bar's expert] believed Petitioner's addictions problems are in sustained remission and there is no mental health reason that would preclude Petitioner from consistently adhering to the Rules of Professional Conduct. No evidence was presented to the contrary.
The board notes that he has been reinstated in Tennessee and proposes readmission with conditions that would include monitoring for one year. (Mike Frisch)
March 16, 2009
Save the Sarcasm
The Arkansas Supreme Court ordered disbarment of an attorney who had previously been disciplined in that state and was on interim suspension in the proceedings. The Bar's Executive Director had filed a series of amended petitions after his initial charging document. The amendments added charges to prior allegations as well as new charges in follow on cases. The accused lawyer defaulted on the charges but contested the legality of the amended petitions. The court rejected the procedural attack. The amended petitions are allowed under the Arkansas procedures and do not violate the accused lawyer's due process rights so long as the lawyer is on fair notice of the allegations.
One interesting point in the decision--the lawyer claimed that the executive director showed "clear personal bias" and that the Bar's brief was " replete with sarcasm and vituperation masquerading as legal argument." The court agreed that the "brief [was] unprofessional in tone and improper in some of its content." Nonetheless, disbarment was imposed. (Mike Frisch)
The High Road
A Virginia lawyer was reprimanded with terms in a case where he represented a divorcing wife. The husband's attorney filed a counterclaim alleging that the wife had "romantic encounters...with a person known to both parties. That person was the Respondent." He had non-suited the case "because he realized he likely could be a necessary witness in the pending litigation. " She then hired new counsel.
The Virginia Subcommittee found that the lawyer had violated Rule 3.7 (lawyer as witness). The terms imposed include a requirement to attend two CLE courses, one of which is Taking the High Road-- Ethics and Professionalism in Family Law Cases. (Mike Frisch)