April 24, 2009
Campaign Contribution From Entrusted Funds Draws Suspension
The Louisiana Supreme Court suspended an attorney for misconduct that included using entrusted funds to make a contribution to his campaign for a judicial district court judgeship. After a remand from the court that questioned the sufficiency of a fully-probated sanction, the court imposed a two-year suspension. (Mike Frisch)
Unauthorized Practice By Suspended In-House Counsel
An Arizona hearing officer has recommended a six-month suspension retroactive to early March of an attorney who had engaged in unauthorized practice for serving as chief legal officer of two corporate entities while suspended in Arizona for CLE non-compliance. He was inactive in both Idaho and Washington State.
The lawyer had prepared legal documents, responses to subpoenas, given advice to employees and negotiated a settlement between one of the entities and an employee. The employee complained to the Bar and the attorney failed to repond prior to the filing of a formal complaint.
Note the post from yesterday reporting a Pennsylvania disbarment for practicing while suspended for nort fulfilling CLE obligations. (Mike Frisch)
Stay Away From The MBTA
The Massachusetts Supreme Judicial Court accepted the resignation and ordered the disbarment of an attorney convicted of open and gross lewdness, assault and batttery, and indecent exposure. According to a summary on the web page of the Board of Bar Overseers:
Open and gross lewdness is a felony. In each case, the victim was a high school student. The respondent was sentenced to concurrent terms of two years in the house of correction on the first two counts and six months on the charges of indecent exposure, all suspended for three years subject to conditions including continued sex offender treatment; staying away from all MBTA stations and modes of transportation, Boston Latin School, and all other Boston public schools; no contact with the victims; and twenty-five hours of community service.
April 23, 2009
CLE Obligations With Teeth
The Pennsylvania Supreme Court has imposed disbarment by consent of an attorney who had not notified clients and courts of his suspension for failure to comply with mandatory CLE obligations. He also undertook a new matter after taking CLE courses but prior to reinstatement. Among the courses he took were Annual Auto Law Seminar, Science of Persuasion and George and Ray's Review of Accounting Standards for Industry. The ensuing bar charges, which included allegations of dishonesty, are appended to the court's order. (Mike Frisch)
Special Counsel Not Needed
The Minnesota Supreme Court has imposed an indefinite suspension of at least two years for violating eight Rules in connection with his representation and employment of client "X." He had denied the allegations that he had testified falsely, submitted false evidence, failed to correct false testimony, assisted in violating a court order and failed to supervise a non-lawyer assistant.
The attorney, who was admitted in 1974, represented clients in attorney malpractice matters. He became friends with X (a non-lawyer) who had three felony convictions. The allegations stemmed from both the employment arrangement with X and the handling of X's probation revocation.
The court concluded that the dishonest conduct merited a significant sanction. The court also rejected the claim that the disciplinary counsel had a conflict of interest because one of the complaints came from the Attorney General's office, which has the authority to act as counsel to the Lawyers Professional Responsibility Board. The attorney had sought appointment of a special counsel to handle the bar matter out of an alleged concerned that disciplinary counsel would be "overzealous" in pursuing the matter. The court also rejected the contention that the lawyer's due process rights were violated because the disciplinary counsel had sought privileged information. X had waived the privilege and the bar had not received protected documents. (Mike Frisch)
"A More Than Reasonable Belief"
The New Jersey Appellate Division has held that the trial judge in a domestic relations matter had improperly failed to recuse himself from the case. The judge had been a law partner of the attorney for the party seeking recusal and the "assertion was based on the breakup of the law firm in which the judge and the defendant's trial attorney were partners, and the resulting acrimonious litigation between the judge and her attorney."
The judge had taken the bench in 1996 and listed his former partners on his disqualification list. He had accused another partner of improper withdrawals from the firm's business accounts. He removed the former partners from the recusal list after eight years.
The court looked to the allegations in the prior law firm litigation and concluded that "this judge should not have sat on this case. That is because the acrimonious relationship between counsel and the judge, including prior litigation which included charges of assault and unethical conduct, give rise to more than a reasonable belief by an objectively reasonable litigant that the judge could not be fair and impartial."
Case remanded. (Mike Frisch)
The Joys Of Being Bar Counsel
There are times when the often thankless job of disciplinary counsel has its rewards. For me, many if not most of those times involved cases where I had taken an exception and argued a position contrary to that of the D. C. Board on Professional Responsibility. Today, I bask in the reflected glow of a decision issued by the District of Columbia Court of Appeals that rejected the Board's refusal to impose a fitness requirement on a lawyer who had failed to participate in the disciplinary process. The attorney had ignored a Board order and been served by publication. The attorney knew of the charges, as she called in to say she would be late but never personally appeared. She "reluctantly agreed" to participate by telephone.
The attorney did not participate in the matter before the court. The Board's attorney argued that her "avoidance" of her ethical obligations was distinguishable from "deliberate evasion." The court: "We fail to see the distinction." Further, the court found "it difficult to regard [the attorney's] telephone calls as cooperative efforts when...she promised to file a response and failed to do so [and] refused to give Bar Counsel an address at which she could be personally served." One might fairly wonder why the board would feel it appropriate to make excuses for the lawyer on such a record.
The court found the lawyer had evaded service and had otherwise demonstrated "deliberate disregard for the disciplinary process." The court, unlike the board, has a serious doubt about the lawyer, which requires her to prove fitness before reinstatement.
It has always amazed me that the D.C. board has defended, rather than condemned, deliberate indifference to its own processes and orders. The board rejected the hearing committee's fitness recommendation and rejected (improperly, the court found) the hearing committee's credibility findings concerning the lawyer's reasons for "stonewalling" the disciplinary system. Here, the board went so far as to brief and argue on behalf of a lawyer who could not be bothered to do so on her own. Indeed, the attorney had not opposed a fitness requirement before the board after it was recommended by the hearing committee.
Kudos to Bar Counsel for taking (and prevailing on) an exception to the board's recommendation. (Mike Frisch)
New Blog on Complexity Models and the Law
Posted by Jeff Lipshaw
There's a new entrant to the legal blogosphere - the Computational Legal Studies blog - run by Dan Katz and Michael Bommarito at the University of Michigan. Katz and Bommarito are both Ph.D. candidates in political science; Katz already has his Masters in Public Policy and J.D. from Michigan.
The blog includes the following:
(1) Online Simulation where a user can diffuse ideas (at any level of infectiousness) upon the structure of the American Legal Academy.
(2) Zoomable Visualization of Campaign Contributions to the 110th Congress. Both the Senate and the House.
(3) Visualization of Hiring/Placement Network within the American Legal Academy
Dan Katz got in touch with me some time ago when I made a couple of forays into the matter of complexity. When I was in tenth grade, I wrote an English paper that I recognize now (it's still in a box in the basement) as my adolescent effort at expressing a personal epistemology and moral philosophy. My teacher, obviously completely bedazzed by the BS, said something like it reached the true simplicity that lies beyond complexity. Well, when you look at the work Dan and Michael are doing, that's precisely the paradox you have to confront. In other words, this stuff ain't easy (see image, right). My simple-minded question is whether there are simple universals about complexity that you can draw from the work. And that's enough to give somebody a headache early in the morning.
As a thirty-year holder of University of Michigan football tickets, and the parent of an about-to-graduate Michigan senior who is most likely going on to be a student at the Medical School, I'll be in Ann Arbor a few times over the next couple years, and I've challenged Dan to explain this stuff to me in short sentences consisting of words with three syllables or fewer.
April 22, 2009
No Need to Remand
The Illinois Review Board rejected a hearing board's finding of no misconduct in a matter where a lawyer had submitted inaccurate caseload information in order to secure a grant for a legal services agency, based on her supervisor's assurances that the accuracy of the information did not matter:
Wolf testified that, while not directly telling her to fabricate numbers, Stulberg [a non-lawyer but Wolf's supervisor] told Wolf to "do whatever (she) had to do to not show such a huge discrepancy [in caseload numbers]" Stulberg did not give Wolf any direction as to how to go about doing this. There was no one else at CDEL who had worked on Client Data Sheets in the past and Wolf did not receive any explanation as to how the numbers used in the past had been calculated.
Wolf understood that Stulberg did not want to be interrogated by the grantors about a large discrepancy in the numbers; Wolf did not understand that the numbers themselves were significant in determining whether or not CDEL would receive the grant. Wolf relied on Stulberg’s experience and assumed that the number of cases was not a material issue. Wolf also assumed that Stulberg, who was a long-time friend of Wolf’s family, would not put Wolf in a position of doing something that was not right.
The board found a Rule 8.4 violation and recommended that the Supreme Court impose a reprimand. The board further rejected the Administrator's request for a remand:
...the Administrator’s case showed that, while there was a violation of Rule 8.4(a)(4), given all the circumstances, it was a relatively minor one. Wolf did not act with an intent to deceive the organizations from which the grants were sought. She relied on Stulberg’s representation that the numbers did not really matter. Once she learned that the information she provided was material, Wolf acted promptly to correct the error. She admitted her wrongdoing and is clearly contrite. Wolf’s disclosures ultimately benefited CDEL and paved the way for greater accuracy in its recordkeeping. While there was potential for harm, Wolf’s actions do not appear to have actually caused any harm. While CDEL withdrew the grant proposals it had submitted based on Wolf’s numbers, thereby losing that funding for the year, the extent to which this was caused by Wolf’s conduct, as opposed to the conduct of others, is uncertain.
The Administrator seeks a remand. However, even if Wolf presented a case to the Hearing Board, she would be bound by her judicial admission, which established a violation of Rule 8.4(a)(4). Based on the Administrator’s case alone, the evidence does not warrant any greater sanction than a reprimand. Given this fact, a remand to the Hearing Board so that Wolf could present a case would not serve any useful purpose. Consequently, we decline to remand.
It's the Most Wonderful Time of the Year
Posted by Jeff Lipshaw
We're heading into our last couple days of classes, and I saw a colleague (who will remain nameless) bouncing his way down the hallway with a disgustingly cheerful air, and what we used to refer to as a "%^&( eating grin." I asked him why he was so happy, and he said "it's my favorite time of the year." Immediately, a little Andy Williams in a devil costume popped up on my shoulder, singing the following:
The 3Ls are cramming
And take-home examming, with 1Ls in fear.
It's the most wonderful time of the year
It's the hap-happiest season of all
With the summer approaching and no class encroaching
At least until fall,
It's the hap- happiest season of all
There'll be stipends for writing
With no deans to be fighting,
And grading will all have been done.
There'll be times of clairvoyance;
We're free from annoyance when
Faculty meetings are none.
It's the most wonderful time to stay here
There'll be much profound thinking
On essays we're inking
When students steer clear
It's the most wonderful time of the year
There'll be federal granting
And no colleagues ranting
In committees to which we belong
We'll be teaching in Florence
And free from abhorrence
Of everything we know is wrong.
It's the most wonderful job you can get.
While the law firms are bleeding
And markets receding
The one thing we never forget
It's the most wonderful job
It's the most wonderful job
It's the most wonderful job you can get.
A Sad Situation
The Pennsylvania Supreme Court imposed a 15 month suspension, backdated to an interim suspension, of an attorney convicted of offenses related to drug possession. The attorney also had been criminally charged with misapplication of entrusted property involving over $500, 000. The attorney was charged as a co-defendant with his adoptive father, with whom he had practiced law. The criminal case resulted in verdicts against the adoptive father for the full charged amount. The lawyer was found to have misapplied approximately $40,000.
The Disciplinary Board called the matter a "sad situation." The attorney had been sexually abused by the adoptive father, who was the senior member of their firm. He had reluctantly had joined the firm after law school out of a sense of obligation to the adoptive father. His drug problems were an attempt to self-medicate. He had been:
tasked by his adoptive father with the nearly impossible responsibility of repairing a large shortfall in his law firm's escrow account. This shortfall was not due to any misconduct on [his] part, but rather was the fault of [his] adoptive father, who was eventually convicted of theft offenses in relation to this shortfall. All new attorneys face challenges in the workplace; [his] challenge was unlike anything this Board has witnessed. [He] had no other direct supervision when he became an attorney aside from his adoptive father, who had a powerful hold over [his] conduct as a result of his sexual abuse and the financial control he exerted over him. [His] involvement in the law firm's financial problems caused stress and resulted in his eventual addiction to cocaine.
Several Board members dissented in favor of either a non-retroactive or a two-year suspension. (Mike Frisch)
Career Ends In Revocation
A Virginia attorney has consented to the revocation of his law license. The Bar Counsel had sought an expedited hearing on charges that the attorney had loaned himself over $4 million in entrusted funds from an estate. The Bar was also looking into possible misconduct in two other estates matters. The attorney had been admitted to practice in 1955. (Mike Frisch)
Trifecta Of False Statements Proven
An Illinois Hearing Board has recommended a three year suspension in the much publicized case involving an attorney who had failed to disclose information in his admission application to the University of Chicago Law School, altered his law school transcript to obtain employment at Sidley Austin and failed to disclose that conduct in the bar admission process.
The board evaluated the evidence of present candor and remorse in the disciplinary matter:
Although Respondent admitted his deceptions and apologized to every person and entity he may have harmed, the Administrator disputes his candor and credibility on these subjects.
With respect to Respondent’s admissions of misconduct, the Administrator questioned whether he has fully and completely owned up to his mistakes and cited to his failure to disclose all of his past deceptions in his recent application to business school as an example of his continued efforts to conceal his past conduct. Having reviewed that application, however, we believe he provided the information that was requested, including his dismissal from medical school. We note that while the application asks about academic discipline or convictions for a crime, it does not ask whether the applicant’s professional conduct has been the subject of inquiry or action. Following Respondent’s admission to the MBA program, he did contact the student affairs office, disclosed the pending disciplinary complaint against him, and asked whether he should submit a copy of the complaint. According to Respondent, his offer was declined because the office was only interested in conduct of a criminal nature.
With respect to Respondent’s expressions of remorse, the Administrator characterized him as a "professional actor" and pointed out that he has a history of offering seemingly genuine apologies after exposure or threatened exposure of his conduct. Having observed Respondent closely, we came to a different conclusion. We believe he has spent considerable time reflecting on his actions and motivations, and is repentant for his misdeeds. Further, we believe his remorse encompasses the damage or potential damage he caused his fellow law students, the law firms to which he applied, the University of Chicago Law School, and the legal profession. He expressed his regret, we believe him, and we do not know what else he could have added to satisfy the Administrator. We also note that two attorneys who worked with Respondent in recent years testified that he has exhibited extreme shame and remorse.
We received no indication that Respondent’s previous apologies were not genuine and we do not wish to penalize him for expressing prior regret for mistakes. With respect to his 2003 apology to the law school for omitting information from his law school application, Respondent could have remained silent and waited to see if the matter became an issue with the New York bar, but instead he notified the school of his conduct, admitted that his omission was purposeful, and apologized for his conduct. While his letter did not disclose his additional malfeasance in altering transcripts, his admission was a step forward in owning up to his mistakes. As to his apology to the law school dean when he was questioned about his failure to cite source material and his apology to the partners at Sidley when he was confronted with his altered transcripts, an acknowledgement of wrongdoing and expression of regret was both appropriate and warranted in each of those instances. No witness testified that the apologies seemed perfunctory or insincere.
We do not believe the challenges to Respondent’s forthrightness and candor after the misconduct was revealed were supported by the record. His testimony was sufficiently consistent with the recollections of the other witnesses and with the documentary evidence, and his expressions of remorse and acknowledgements of his misconduct were credible. We therefore consider those factors as mitigating circumstances.
One rather interesting piece of evidence recounted in the report:
The parties stipulated that, if called to testify, Julie Gage Palmer would state she has been a lecturer at the University of Chicago Law School since 2000, and in the spring of 2001, Respondent was enrolled in her Law, Science, and Medicine class. With respect to a paper Respondent submitted for that class, Palmer determined that he had represented seven paragraphs of another author’s work as his own. Palmer notified the dean of students and the dean of the law school but did not speak to Respondent because she understood the matter would be handled by the dean. When Palmer subsequently encountered Respondent at the law school in the spring of 2003, he thanked her for reporting the paper and told her it was the "kick in the pants that [he] needed."
The board concluded that disbarment was not appropriate. I have sympathy for the Administrator's view that disbarment is the proper sanction when false statements or concealment leads to admission.
Our earlier post on the charges is linked here. (Mike Frisch)
April 21, 2009
No Examination Required
The Washington State Court of Appeals, Division II, reversed the one-year license suspensions of three exotic dancers, concluding that the dancers had been denied due process. The conduct that led to the suspensions was described by the court:
On January 20, 2006, three Pierce County detectives participated in an undercover sting
operation at Fox's Adult Nightclub. Brunson, Johnson, and Tucker performed lap dances for the detectives, touched the detectives, and received money from the detectives. Two of the dancers allowed the detectives to touch them. After the detectives received their dances, several police officers entered Fox's and arrested Brunson, Johnson, and Tucker for violations of the county code.
The court did hold that exotic dancers are not considered professionals who are entitled to the same due process protections for license suspension as, for instance, doctors:
Washington courts have required the higher standard of proof in disciplinary hearings for
the following professions: physicians, engineers, and nursing assistants. Washington courts have not decided, however, to extend the same due process guarantees to erotic dance licenses, which do not require any schooling or qualifying examination. The dancers do not cite any authority showing that erotic dance licenses are professional licenses.
A lawyer was suspended by consent for four months in South Carolina, retroactive to an interim suspension, in connection with five matters. Three involved speeding--one driving 140 mph in a 70 zone. A fourth matter involved a traffic stop during which marijuana was discovered. The charges were dismissed but the lawyer admitted he may have made misleading statements to the police.
The court described the remaining matter:
On September 21, 2007, respondent took his dog to a veterinary clinic for treatment. Later the same day, respondent called the clinic to speak with the veterinarian. The office manager informed respondent that the veterinarian was with a customer and unable to take his telephone call. According to the office manager, respondent used vile and profane language during the conversation. The office manager filed an incident report with the police department and, as a result, respondent was charged with unlawful use of a telephone.
On November 19, 2008, respondent’s case was heard before a Spartanburg Magistrate. Respondent’s counsel moved to dismiss the charge arguing that an unlawful use of telephone charge required that the telephone call be made with the intent and sole purpose of conveying an unsolicited obscene or imminently threatening message or to harass the recipient. Respondent’s counsel asserted the purpose of respondent’s telephone call to the veterinary clinic was neither unsolicited nor made for the sole purpose of harassing or threatening the office manager. The magistrate dismissed the charge against respondent.
Respondent admits he used some inappropriate language during his telephone conversation with the office manager. He represents that, at the time of the incident, he was very emotional due to the condition of his pet. Respondent apologizes for his conduct.
Is speeding really an ethical violation? The 140 mph case was pled down to 92 mph. Under the circumstances, I'd be more concerned about the driver's license than the law license. (Mike Frisch)
Ohio Supreme Court Sustains Claim Of Privilege
The web page of the Ohio Supreme Court reports a ruling from the court:
The Supreme Court of Ohio ruled today that an investigatory report prepared by a private law firm on behalf of a public agency is covered by attorney-client privilege and is not subject to mandatory disclosure under the state’s Public Records Act.
The Court’s 7-0 per curiam decision denied a writ of mandamus that was sought by the Toledo Blade newspaper to force disclosure of an investigative report prepared by the Spengler Nathanson law firm on behalf the Toledo-Lucas County Port Authority. The port authority’s board of directors retained the law firm to review and analyze records in order to identify potential legal repercussions of an alleged improper personal relationship between the president of the port authority, James Hartung, and Kathy Teigland, a contract lobbyist paid by the port authority and a consortium of other northwest Ohio governmental entities.
In July 2008, the mayor of Toledo, a consortium member, informed the port authority that Hartung had been engaged in an extramarital affair with Teigland and that Hartung may have improperly funneled money to the lobbyist and used his influence to her advantage. The port authority contracted with attorney Teresa Grigsby of the Spengler Nathanson firm to investigate the factual and legal issues concerning the mayor’s allegations. The port authority considered it essential that Grigsby, its long-time outside legal counsel, conduct the investigation to identify the pertinent factual and legal issues.
Spengler Nathanson, through attorney Grigsby and other attorneys, reviewed and analyzed port authority records and prepared an investigative report. The attorneys distributed numbered copies of the investigative report in sealed envelopes to the members of the port authority’s board of directors during an executive session of a regularly scheduled meeting. The board members were informed that the report was confidential and could not be shown or disclosed to any third party. Following a subsequent special session, copies of the report were returned to the law firm. On Aug. 1, 2008, after the special meeting, the board voted unanimously to terminate Hartung’s employment with the port authority immediately and for cause. The port authority publicly announced that Hartung had been terminated because he had pursued an inappropriate relationship with a vendor to the consortium in violation of the port authority’s policies.
On the day Hartung’s termination was announced, the Blade filed a public records request with the port authority seeking disclosure of the Spengler Nathanson report and all documents that were reviewed in connection with it. The port authority denied the request, asserting that the requested items were exempt from disclosure under an exception in the public records act for documents covered by attorney client privilege. The Blade filed a second request. The port authority ultimately made available to the Blade all of the responsive documents Spengler Nathanson had reviewed in preparing its report, but refused to provide the newspaper with a copy of the report itself.
The Blade filed an original action in the Supreme Court seeking a writ of mandamus to compel disclosure of the law firm’s report and all supporting documentation. The Blade’s complaint also sought statutory damages for unlawful refusal to disclose a public record and an award of its attorney fees.
In today’s decision, the Court denied the requested writ based on its findings that the investigative report was covered by attorney-client privilege, and that the Blade’s request for other documents was moot because the port authority had already provided copies of all of the records the law firm had reviewed in preparing its report.
In rejecting the Blade’s argument that attorney-client privilege bars disclosure only of documents in which an attorney provides “legal advice” to a client, the Court cited language from several federal and state court decisions endorsing a much broader definition of the privilege.
“(M)ost courts that have expressly addressed the issue of whether an attorney’s factual investigations are covered by the attorney-client privilege have determined that such investigations may be privileged. See, e.g., In re Allen (1997) ... and cases cited therein. For example, in Upjohn (Co. v. United States) (1991) the United States Supreme Court recognized that the ‘first step in the resolution of any legal problem is ascertaining the factual background and sifting through facts with an eye to the legally relevant.’ ‘[T]he Upjohn pronouncement hardly stands alone. Courts have consistently recognized that investigation may be an important part of an attorney’s legal services to a client.’ ... Notwithstanding the Blade’s argument to the contrary, ‘the privilege is not narrowly confined to the repetition of confidences that were supplied to the lawyer by the client. That cramped view of the attorney-client privilege is at odds with the underlying policy of encouraging open communication; it poses inordinate practical difficulties in making surgical separations so as not to risk revealing client confidences; and it denies that an attorney can have any role in fact-gathering incident to the rendition of legal advice and services.’”
In this case, the Court held, “(I)t is manifest that the factual investigation conducted by attorney Grigsby was incident to or related to any legal advice that the attorneys hired by the port authority would give concerning the mayor’s allegations of misconduct by the port authority president. More specifically, the attorney’s investigation required her to draw upon her legal training and experience as well as her knowledge of the law governing the port authority and its policies and personnel. ... Legal issues included interpretation of Hartung’s employment contract, an analysis of ethics law and criminal law, potential tort claims by Hartung and Teigland, and the construction of a confidentiality provision in the settlement agreement concerning a previous port authority investigation. Legal analysis related to the facts in the investigation is integrated throughout the report.”
“(B)ased on the persuasive weight of authority,” the Court concluded, “we hold that the port authority has established that the investigative report was related to attorney Grigsby’s rendition of legal services and is thus excepted from disclosure under the Public Records Act as material covered by the attorney-client privilege.” Because the Blade’s petition for mandamus was denied, the Court also overruled its claims for statutory damages and attorney fees.
The decision is linked here. (Mike Frisch)
Intent Finding Key To Sanction Determination
From the web page of the Ohio Supreme Court:
The Supreme Court of Ohio today suspended the law license of Hinckley attorney Kenneth L. Lewis for one year for forging the signature of a judge on a draft judgment entry granting his client occupational driving privileges when the court had rejected the proffered entry as not in compliance with local rules.
In a 5-2 per curiam decision, the Court adopted findings by the Board of Commissioners on Grievances & Discipline that Lewis had engaged in conduct involving dishonesty, fraud, deceit or misrepresentation; conduct prejudicial to the administration of justice; and illegal conduct adversely reflecting on a lawyer’s honesty or trustworthiness.
In setting the sanction for Lewis’ misconduct, five members of the Court deferred to the opinion of the disciplinary panel that heard testimony in the case and rejected as “simply not believable” Lewis’ explanation that he had signed the judge’s name on the rejected entry to show his client “what an approved occupational driving entry would look like” and then let the client keep the forged document.
The majority opinion was joined by Chief Justice Thomas J. Moyer and Justices Paul E. Pfeifer, Maureen O’Connor, Terrence O’Donnell and Robert R. Cupp.
Justice Evelyn Lundberg Stratton entered a dissenting opinion, joined by Justice Judith Ann Lanzinger, stating that she would impose a stayed license suspension rather than an actual suspension based on her view that Lewis’ conduct after he signed the judge’s name on the entry, including scheduling subsequent hearing dates to pursue occupational driving privileges for the same client, was consistent with his claim that he never intended or attempted to pass off the forged entry as genuine.
The court's decision is linked here. (Mike Frisch)
Email As Evidence Of Misconduct
A South Carolina attorney was reprimanded by consent for misconduct during the course of the representation of a client in a divorce matter. The evidence against the lawyer consisted in part of email responses to client inquiries about the status of the case:
...Complainant retained respondent to represent him in a divorce action. Respondent admits that, between October 2006 and October 2007, there were periods of time when he did not return Complainant’s telephone calls. He further admits that he failed to act diligently in connection with the handling of Complainant’s domestic action.
...respondent informed Complainant via e-mail that he had spoken with the family court judge who had indicated she would sign an order approving service by publication and that the documents would be sent out the following week. This information to Complainant was premature as respondent had not presented an order to the family court judge.
...Complainant sent respondent an e-mail stating that it had been over a year since respondent had been retained. Complainant inquired whether the divorce had been finalized. Respondent replied via e-mail that “[t]he Judge has signed the order approving publication and we are in the process of serving her by publication.” This statement was a fabrication as no order of publication had been signed.
...respondent received notice from the Clerk of Court that Complainant’s case had been pending for 365 days and was subject to dismissal. Respondent failed to inform Complainant of this development. Instead, when Complainant e-mailed respondent on March 12, 2008 expressing frustration with the progress of the case, respondent responded by repeating his earlier misrepresentation about the status of the case. Respondent stated, “…the judge has approved the service by publication.” Respondent knew that this statement was completely false.
...respondent requested a status conference with the family court judge to discuss Complainant’s case and to obtain permission to serve the defendant by publication. This request was denied.
...respondent sent an e-mail to the family court judge stating that Complainant’s case had “slipped through the cracks on me.” Respondent requested additional time to serve the defendant by publication.
...respondent received a written response from the family court judge denying the request for service by publication and giving respondent thirty (30) days to effect service or the matter would be dismissed. Respondent did not inform Complainant about this development.
...respondent received notice that Complainant’s case had been dismissed. Respondent failed to inform Complainant of the dismissal. Complainant did not learn of the dismissal until May 9, 2008 when he went to the Clerk of Court’s office seeking information on the status of his case.
April 20, 2009
An Unreasonable Fee?
The web page of the Tennessee Board of Professional Responsibility reports that a Nashville attorney has been suspended on an interim basis. The Board alleges that the attorney poses a substantial harm to the public based on charges that he had offered to exchange legal services for stolen property.
The Tennessean.com reports that the attorney was arrested on felony drug charges last month. (Mike Frisch)
Important Decision On Bar Confidentiality
The Louisiana Supreme Court has dismissed disciplinary charges against two attorneys who had been charged with violating bar rules mandating confidentiality of disciplinary proceedings . The court held that the rule violated the First Amendment of the United States Constitution as an unconstitutional content-based restriction of speech.
The matter involved a lawyer who had filed disciplinary complaints against three lawyers. The lawyer represented a client in a workers' compensation and third party liability matter. The complaining lawyer was discharged prior to the conclusion of the litigation. The bar complaint he filed was against one lawyer who had represented an opposing party; the other two had been retained by the client after the complaining lawyer had been discharged.
The lawyer had filed a civil suit against several lawyers. He then filed the bar complaints. He received a copy of the lawyers' responses to his bar complaint without notice from the Office of Disciplinary Counsel that the matters were confidential. He then attached the bar complaint responses to pleadings in the litigation. The bar charges were instituted as a result of the public filing of the response. The second charged lawyer was working with the attorney who had filed the bar responses.
The court rejected the proferred justifications for the rule:
The confidentiality rule is a content-based regulation, and thus its substantial restriction of speech may only be deemed constitutional if the rule satisfies the requirements of strict scrutiny analysis. Accordingly, we have reviewed the requirements of strict scrutiny in-depth [79 pages] and have carefully applied these standards to the rule. We conclude that the confidentiality rule does not satisfy the requirements of strict scrutiny. As we interpret the Supreme Court's holdings, the reputational interests of attorneys, while important, do not qualify as compelling under strict scrutiny.
Let the sunshine in. (Mike Frisch)