March 25, 2009
The Wisconsin Supreme Court publicly reprimanded an attorney for "failing to comply with an opposing party's discovery request and with court orders to provide discovery, and in making misrepresentations to the court that he had complied." The misconduct had taken place while he was serving as a part-time assistant district attorney. After a referee had determined that the disobedience of court orders was "extremely egregious misconduct," the lawyer and the Office of Disciplinary Counsel jointly recommended a public censure. The court was concerned that the sanction might be unduly light and "directed the parties to file memranda explaining the factual and legal bases for the [agreed discipline]."
Here, the court finds that the upper range of discipline for comparable conduct would be a 60 day suspension but accepts the joint recommendation:
Although we determine that a suspension is not necessary to protect the public and the judicial system in this instance, that result should not be interpreted as indicating that this court is not troubled by Attorney Kohler's misconduct. His continuing refusal to obey the circuit court's discovery orders, even if he disagreed with them, constitutes a serious violation of an attorney's professional obligations. No attorney, whether prosecutor, criminal defense counsel, or civil attorney, has the option to disregard an order of a court, no matter how much the attorney disagrees with the order and no matter whether the order addresses discovery obligations or other matters. Our system of justice simply would not function if attorneys could overrule courts.
Similarly, no attorney, whether prosecutor, criminal defense counsel, or civil attorney, may distort the truth when presenting argument to a court. As we noted in another case in which an attorney had made misrepresentations to this court, "an attorney's duty of candor toward the tribunal is central to the truth-seeking function of any court." In re Disciplinary Proceedings Against Kalal, 2002 WI 45, ¶1, 252 Wis. 2d 261, 643 N.W.2d 466. All courts have a right to expect that the attorneys appearing before them, regardless of the zeal they have for their client's cause, will adhere to the fundamental duty imposed on them as officers of the court to speak honestly. Attorney Kohler's misrepresentation about his compliance with the circuit court's prior discovery orders is a serious breach of his obligations as an officer of the court.
March 24, 2009
Harboring Alien Leads To Reprimand
The New York Appellate Division for the First Judicial Department imposed a reprimand as reciprocal discipline based on a Connecticut reprimand. The attorney had been convicted of the federal criminal offense of harboring an alien, who had served as a domestic servant in the attorney's home from August 2001 to February 2002. At the time, her visa was expired. The attorney was living in California, where is not admitted to practice, at the time of the conduct. (Mike Frisch)
Reinstatement Denied in Light Of Restitution Issues
The Wisconsin Supreme Court denied the petition for reinstatement of a former attorney who had been appointed to represent Milwaukee Cheese and Sheboygan Sausage in a Chapter 11 bankruptcy proceeding. He embezzled over $550,000 of entrusted funds to support his lifestyle. He also took funds from his mother's living trust. His license was revoked in 1993 and he was convicted of related federal offenses.
The court notes:
We do not reach this decision lightly. It has been 16 years since Attorney Jennings agreed to the voluntary revocation of his license to practice law. Sixteen years is a long time. In the interim, Attorney Jennings has taken some significant steps to turn his life around and atone for his bad behavior. He has maintained steady employment. He has been making court-ordered restitution payments to the Employee Stock Ownership Trust of Milwaukee Cheese. He has attended legal educational programs to maintain competence and learning in the law. In spite of these positive steps, we are troubled, as was the referee, by the fact that Attorney Jennings' former law firm and the president and CEO of DSI are still owed large sums of money. We recognize that Attorney Jennings may lack the financial resources to ever make full restitution. What we find far more troubling than his failure to make restitution is his apparent failure not to have ever tried to determine exactly how much he owes his former law firm. When pressed on this issue at oral argument, Attorney Jennings first seemed to skirt the issue, and only when directly pressed on the subject did he admit that he has made no direct payments to his former law firm since 1997 and he did not know——and apparently never made a real effort to figure out——how much he owes the firm. This seeming failure to completely face up to his obligations gives us pause and tips the balance against granting the reinstatement petition.
Failure To Supervise
The United States Court of Appeals for the District of Columbia Circuit today affirmed a verdict against Allen Iverson for injuries caused when his bodyguard attacked the plaintiff in a brawl that had erupted at Eyebar, a Washington, D.C. nightclub. The plaintiff had suffered a concussion, a burst blood vessal in his eye, a torn rotator cuff and other physical and emotional injuries. The trial jury had awarded $260,000 in damages.
The claims against Iverson were premised on a theory of negligent supervision. The court rejected his claim that expert testimony was required to establish standard of care in the supervision of a bodyguard; "[t]he key distinction between what happened at the Eyebar and the district court cases Iverson cites is that here the individual with the supervisory authority (Iverson) was present when his employee...committed the tortious acts." (Mike Frisch)
Not Ineffective Assistance
The United States Supreme Court reversed and remanded a finding of ineffective assistance of counsel by the Ninth Circuit. Writing for the court, Justice Thomas concluded that that the defendant had not only failed to establish that the state court's rejection of the claim was contrary to, or involved an unreasonable application of, clearly established federal law, but that "he has not shown ineffective assistance at all." The claims were premised on counsel's recommendation to abandon an insanity defense in the sentencing phase of a murder trial after the jury had rejected the NGI as a defense in the guilt phase.
Six justices joined the full opinion. Justices Scalia, Souter and Ginsburg joined all but Part II of the opinion. (Mike Frisch)
Where There's a Will There's No Way
A lawyer who negligently fails to draft a will for a client is not liable for legal malpractice based on claims made by the intended beneficiaries of the estate, according to a decision of the South Carolina Supreme Court. The court found no policy basis to depart from a strict privity requirement that limits legal malpractice claims to former clients:
Our decision today not to impose a duty on an attorney in favor of a prospective beneficiary for alleged negligent failure to draft a will follows the law in other jurisdictions. We find persuasive the reasoning of decisions from New Hampshire, Connecticut, and Florida. We reference these three jurisdictions, for these states recognize generally that an attorney owes a duty to a non-client intended beneficiary of an executed will where it is shown that the testator’s intent has been defeated or diminished by negligence on the part of the attorney, resulting in loss to the beneficiary. Having relaxed the traditional privity requirement in legal malpractice claims, these states nevertheless draw the line and refuse for compelling policy reasons to permit a malpractice claim by a non-client for negligent failure to draft a will.
The client had consulted with the attorney and had filled out a form that had designated the plaintiffs as beneficiaries. Howver, she died before a will was executed and her estate was probated without any will. (Mike Frisch)
The Benefits Of Reporting Yourself
The South Carolina Supreme Court reprimanded an attorney who had self-reported to the Office of Disciplinary Counsel his participation in a series of what uurned out to be shady real estate transactions on behalf of clients. The key facts:
Respondent self-reported to ODC that he, along with several other lawyers, numerous non-lawyers, and several business entities had been named as defendants in civil litigation initiated by a lender. Respondent’s errors and omissions carrier settled the litigation by paying damages in an agreed amount of $35,000 to the lender.
It is now known that, as a result of a federal investigation, James Byrd, Eric Byrd, and their related business associates and/or entities entered into schemes to acquire and then sell real estate at inflated values to the detriment of the purchasers and to a lender who made loans to those purchasers. Due to those schemes, the lender made loans to persons it would not have otherwise approved. Further, the lender made loans contrary to its policies and procedures and in amounts in excess of its lending policies and procedures which it had in place to promote timely repayment and to prevent default upon its loans secured by real estate mortgages. Subsequently, both the Byrds and others were indicted and sentenced to terms in federal prison for wire, mail, and/or bank fraud.
Respondent represents that he was unaware of any criminal activity in connection with any of the real estate transactions he handled that were arranged by the Byrds. ODC does not dispute this representation. Further, respondent represents that he does not believe that his activities constituted criminal acts and ODC does not dispute this representation.
However, twenty-eight (28) real estate closings which were handled by respondent as arranged by one or both of the Byrds revealed irregularities that ODC contends constitute lawyer misconduct on the part of respondent. With the advantage of information revealed by hindsight and the investigation by the federal authorities and ODC, respondent agrees with ODC’s contention.
In one transaction, respondent wrote a check on his trust account payable to Vision Enterprises, an entity known by respondent to be owned and/or controlled by one or more of the Byrds. The check was for the exact amount due to the seller Eric Byrd on a related HUD-1 Settlement Statement prepared by respondent. As a result, the information furnished to the borrower and lender on the HUD-1 contained incorrect information.
The attorney ceased closing transactions for the clients when he began to have concerns about thier behavior. In the bar proceeding, he cooperated fully and agreed with the OBC that he had violated ethical standards that included lack of competence, conflicts of interest and false statements of material fact. The court noted that, if the misconduct had not been self-reported, a suspension would have been imposed. (Mike Frisch)
March 23, 2009
Privilege to Vent Frustration
The Massachusetts Supreme Judicial Court addressed the application of attorney-client privilege law when a client make threats in a case decided today:
This case requires us to decide whether the attorney-client privilege applies where a client leaves messages on his counsel's telephone answering machine threatening to harm others and the attorney discloses those communications in order to protect those threatened.
The salient facts are not in dispute. Attorney John Doe was representing Michael Moe, a father, in a care and protection proceeding in the Juvenile Court. On November 8, 2007, two days after an adverse ruling by a Juvenile Court judge, Moe left six messages on Attorney Doe's answering machine between 1:08 A.M. and 1:24 A.M. Moe indicated that he knew where the judge lived and that she had two children. In the fourth message, a voice that Attorney Doe recognized as Moe's wife stated that she and Moe were going to "raise some hell." In the fifth message, Moe stated that "some people need to be exterminated with prejudice." Attorney Doe subsequently erased the messages from the answering machine.
During the following week, Attorney Doe observed that Moe had become "more and more angry," and on November 13, 2007, he filed a motion to withdraw as Moe's counsel, which was subsequently allowed. Concerned for the safety of the judge and her family, he disclosed the substance of the messages to the judge.
On November 21, 2007, Attorney Doe was interviewed by a State trooper regarding the substance of the messages, but declined to sign a written statement.
The court concluded:
...[we] hold that Moe's communications were made in furtherance of the rendition of legal services and thus protected by the attorney-client privilege. The Commonwealth's argument to the contrary essentially raises an issue of germaneness. Scholars, commentators, and courts have formulated a number of tests for determining the germaneness of a client's communication. However, none of these formulations appears to give clients breathing room to express frustration and dissatisfaction with the legal system and its participants. The expression of such sentiments is a not uncommon incident of the attorney-client relationship, particularly in an adversarial context, and may serve as a springboard for further discussion regarding a client's legal options. If a lawyer suspects that the client intends to act on an expressed intent to commit a crime, the lawyer may attempt to dissuade the client from such action, and failing that, may make a limited disclosure to protect the likely targets. Requiring the privilege to yield for purposes of a criminal prosecution would not only hamper attorney-client discourse, but also would discourage lawyers from exercising their discretion to make such disclosures, as occurred here, and thereby frustrate the beneficial public purpose underpinning the discretionary disclosure provision of rule 1.6. Furthermore, any test to ascertain the germaneness of an ostensibly threatening communication on a case-by-case basis would make the privilege's applicability uncertain, rendering the privilege "little better than no privilege." Warning clients that communications deemed irrelevant to the matter for which they have retained counsel will not be protected may not only discourage clients from disclosing germane information, but also may disincline clients to share their intentions to engage in criminal behavior. In the latter circumstance, a lawyer's ability to aid in the administration of justice by dissuading a client from engaging in such behavior is impaired. The lawyer also may never receive the very information necessary for him or her to determine whether to make a limited disclosure to prevent the harm contemplated by the client.
In sum, we reaffirm that a client's communications to his lawyer threatening harm are privileged unless the crime-fraud exception applies. Because the Commonwealth does not assert that Moe's communications come within the crime-fraud exception, they were privileged. The order denying Attorney Doe's motion to quash is hereby vacated and the case is remanded to the Superior Court for further proceedings consistent with this opinion (citations omitted).
The case is In the Matter of a Grand Jury Investigation. (Mike Frisch)
Enjoining Bar Prosecution
The North Carolina Supreme Court remanded a case where an attorney had sued the North Carolina State Bar on a theory that it had acted vindictively in filed sequential actions against him. He had brought a section 1983 action and the Bar appealed after losing in the Court of Appeals. The court here remanded with instructions to dismiss claims of substantive due process violations with prejudice but to dismiss his claims that he had been denied procedural due process without prejudice.
Three complaints were filed by the Bar against the lawyer. Two were actions alleging ethics violations and the third sought reimbursement for claims paid to his clients by the Client Security Fund. The first disciplinary case resulted in a five-year suspension with the last three years stayed. The lawyer filed suit against the Bar when the second disciplinary matter was pending, alleging that the conduct at issue was known when the first case was filed. He claimed that the prosecution was retribution for his exercising rights in the first case.
The trial court eventually granted a TRO permanently enjoining prosecution of the second disciplinary case, which involved misappropriation charges. The Bar appealed and the Court of Appeals dismissed the appeal as an interlocutory order not affecting a substantial right. The Bar then appealed to the state Supreme Court.
The court here found the Bar suffered risk of injury and had the right to appeal. Further, the "theory of vindictive prosecution is limited to criminal cases" and could not be asserted against the Bar. However, the court concluded that the lawyer can pursue a properly pleaded claim that he was denied procedural due process and that he need not await the conclusion of the disciplinary proceeding to do so. The court disolved the permanent injunction ordered by the trial court.
Two dissenting justices would affirm on the view that the interlocutory order was not appealable.Justice Hudson opines: "The majority's holding here goes beyond our long-standing jurisprudence describing types of substantial rights, and possible impairment of those rights, that justify review of an interlocutory order. The course it sets potentially opens floodgates that should remain closed." Justice Hudson also would allow a theory of vindictive prosecution to proceed against an administrative agency such as the Bar. (Mike Frisch)
The Tennessee Court of Criminal Appeals held that a criminal defendant who had pleaded guilty to a number of charges including impersonating a medical doctor was not entitled to any relief from the sentence imposed by the trial court. The defendant had attended medical school in Grenada but has never been licensed to practice medicine in the United States. He was "assisting" his father, who was licensed and had a practice.
The defendant had treated a family that included a seriously ill teenage child. he had denied the mother's request for an ultrasound test and balked at referring the family to a real doctor. Eventually he acquiesed and the child was evaluated by a doctor, referred to Vanderbilt Medical Center, and diagnosed with bone cancer.
The defendant was sentenced to six years with all but nine months stayed and probation after serving the nine months in the county jail. He claimed that he should receive a fully probated sentence or diversion. The court here rejected both alternatives and approved the sentence imposed.
There appears to be a problem with the link. The case is State v. Arellano aka "Dr. Chuck" and was decided on March 19. (Mike Frisch)
March 22, 2009
No Civil Claim Based On Tough Deposition Questioning
The New Jersey Appellate Division affirmed the dismissal of a lawsuit brought against an attorney and her law firm by the opposing parties in litigation based on allegations of deposition misconduct. The clients' child had been born with medical problems but was discharged from the hospital. The next day, the baby was brought to the emergency room, seen by a doctor, but was not admitted. She died two days later. The lawyer was retained to defend the emergency room doctor.
At the husband's deposition, he had suggested that the doctor was guilty of negligent homicide. The lawyer questioned him regarding that suggestion (the relevant questions and answers are recited in the court's opinion).
The questions resulted in a suit against the lawyer seeking damages for "outrage" and claiming intentional or negligent infliction of emotional distress. The suit contended that the deposition conduct was "outrageous and inhumane" and was "so reprehensible, despicable, nasty, venomous, malevolent and horrid as to violate the most basic foundation of humanity and decency."
The court here held that the lawyer was obligated to closely question and challenge the deponent: "That [he] was distraught and enraged at his loss does not mean that he is entitled to have his statements go unquestioned." The court also agreed that the lawyer defending this action should not be disqualified. He had previously represented the plaintiff's lawyer but had never had an attorney-client relationship with the plaintiffs. (Mike Frisch)
One Angry Man
The California State Bar Court Review Department has recommended the disbarment of an attorney who as a trial juror had engineered the conclusion of a medical negligence trial in order to break a deadlock and return to his law practice. The misconduct was exacerbated by false explanations of his behavior to the judge.He had both denied the misconduct and offered a variety of procedural challenges to the findings of misconduct. The review department noted that he already was serving a suspension for unrelated misconduct. (Mike Frisch)