Saturday, May 2, 2009

Legal Profession Blog

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May 2, 2009 in Bar Discipline & Process | Permalink | Comments (2) | TrackBack (0)

Friday, May 1, 2009

Is A 35 Day Month Like A Billing Day That Exceeds 24 Hours?

The New York Appellate Division for the Second Judicial Department concluded that summary disbarment was appropriate for a federal felony conviction based on the following admitted facts:

The plea minutes reveal that the respondent served as vice-president and general counsel of a company called Computer Associates. Computer Associates was a publicly-traded company whose business was the licensing of computer software. Purchasers paid a one-time license fee and annual maintenance and usage fees thereafter. The licensing agreement, which required the signatures of both the purchaser and a representative of Computer Associates, had to be signed within the time parameters of a fiscal quarter to be recognized within that quarter as earnings. Revenue predictions were issued quarterly, were made public, and used by stock analysts. The price of shares of stock in Computer Associates depended to a large extent on the estimated earnings of Computer Associates within any given quarter. When it became apparent to senior management that the revenue within a quarter was not going to be sufficient to justify the estimated earnings per share because there were not enough license agreements completed within that quarter, Computer Associates instituted a practice whereby license agreements that had been signed and countersigned after the expiration of a quarter, were backdated or reported as having been completed within that quarter. The practice, known as the "35-day month practice," was carried on systematically in the company. The respondent, who served as vice-president and general counsel of Computer Associates from 1995, admitted that he not only supervised attorneys who routinely engaged in the "35-day month practice," but personally participated in the negotiation or drafting of a backdated agreement in January 2000 and engaged in conduct designed to cover up and conceal the existence of the "35-day month practice" from the investigating authorities.

(Mike Frisch)

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

Sign Of the Times

The Vermont Supreme Court suspended a judge for six months for a conflict of interest and writing a letter for newspaper publication that contained false assertions. The court rejected the judge's attack on the findings of fact of the Judicial Conduct Board as to the conflict:

...the Board found that respondent had participated in “both sides of the [Emerge] transaction” and had “violated his fiduciary duty to the County by selling County property to the very organization on whose Board he sat, at a favorable price, eschewing at least one other cash offer which would have brought a higher return to the County for the sale and ignoring much of the accrued debt of the tenant (Emerge).”  As a result of this conflict of interest and patent appearance of impropriety, the Board concluded that respondent failed to maintain the “high standards of conduct” and integrity required of judicial officers, in violation of Canon 1 of the Code of Judicial Conduct; failed to act “in a manner that promotes public confidence in the integrity” of the judiciary, in violation of Canon 2(A); failed to “discharge [his] administrative responsibilities without bias or prejudice,” in violation of Canon 3(C)(1); and failed to properly disqualify himself from participating in a “proceeding in which [his] impartiality might reasonably be questioned,” in violation of Canon 3(E).  In addition, the Board concluded that respondent’s extra-judicial service as a member of Emerge’s board of directors had “[c]ast reasonable doubt on [his] capacity to act impartially as a judge” and “[i]nterfere[d] with the proper performance of [his] judicial duties,” in violation of Canon 4(A)(1) and (3). 

The other violations related to the judge's reelection campaign:  

    The events which formed the basis of the second misconduct charge against respondent arose from his participation in a three-way primary race for reelection in the fall of 2006.  On or about October 18, 2006, respondent placed a campaign sign on the front lawn of a business in Quechee, but the sign was apparently removed the following day.  Respondent assumed that it had been stolen.  Accordingly, on October 21, 2006, respondent sent a note (which respondent has characterized as a “media advisory” or press release) to a local newspaper, the Vermont Standard, characterizing the “theft” as a “political dirty trick” which “appeared to be a continuation of the internecine nastiness directed at me personally during the Democratic primary last summer.” Several days later, respondent had what the Board found to be a “tense confrontation” with the Quechee business owner about the sign’s removal, and on October 26, 2006, an article appeared in another newspaper, the Valley News, reporting that, contrary to the “press release” circulated by respondent, the sign had not in fact been stolen but rather had been removed by the business owner herself.    

Although respondent was thus aware of the true state of affairs concerning the sign by October 26, 2006, he did not withdraw the note that he had previously sent to the Vermont Standard, which published it as a letter to the editor on November 2, 2006, within days of the election.  The article appeared in conjunction with another letter to the editor from respondent touting his “judicial experience.”  The editor of the Vermont Standard testified that respondent had contacted him several days earlier asking why he had not yet published his letter, although respondent claims that the inquiry was in reference to a different letter that he had submitted, which was subsequently published on November 9, 2006.  There is no dispute, however, that respondent did not thereafter submit a letter of correction or retraction to the paper to correct the misstatement concerning the alleged theft.  

As to sanction, the court holds:

In our view, nothing less than the recommended sanction of a six month suspension from all assistant-judge duties upon respondent’s resignation from the board of Emerge would be adequate to restore public confidence in the integrity, impartiality, and independence of the judiciary.  We also concur in and adopt the Board’s recommendation that respondent recuse himself from all county funding decisions from any organization on whose board he has served within the last five years, and complete a judicial ethics course at his own expense with prior approval of the Board.    

      The VACJ [an amicus] rightly notes that there is at times a “tenuous boundary” between an assistant judge’s executive and adjudicative duties.  Rather than lenience in enforcing such boundaries, however, we believe that this requires heightened vigilance to ensure against even the appearance of conflict or impropriety.  In concrete terms, we are concerned about the appearance of impropriety resulting from respondent’s participation in any family court case in which Emerge was, is, or might be engaged to provide parent-contact, supervised visitation, or other services to the court or parties.  Accordingly, we hold that respondent must be disqualified from any case in which Emerge has provided services in the past, or is engaged to provide services within one year from the completion of respondent’s suspension. 

(Mike Frisch)     

May 1, 2009 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

A Step Over A Fine Line

The Iowa Supreme Court affirmed a district court's order that imposed a $25,000 sanction against an attorney who had brought a class action on behalf of homeowners against a manufacturer of roofing shingles and its president. The case involved claims of breach of warranty, recession and fraudulent representations. The court here agreed with the district court that no reasonable Iowa attorney would have brought the claims. The court noted that the lawyer's trial tactics and lack of candor had increased the legal costs of defending the case.

The court stated:

Admittedly, there is a fine line at times between zealous advocacy and frivolous claims...An attorney making a good-faith challenge to existing law may still rely on notice pleading. But there comes a point in every case-usually in response to a motion for summary judgment-when the attorney must acknowledge controlling precedent with "candor and honesty" while asserting reasons to modify or change existing law. Such arguments need not be successful to avoid sanctions. However, we will not allow an attorney to act incompetently or stubbornly persistent, contrary to the law or facts, and then later attempt to avoid sanctions by arguing he or she was merely trying to reverse or expand existing law.

A dissent would find error in the determination of the amount of the sanction. (Mike Frisch)

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

Prohibited Contacts With Employees Draws Reprimand

An Illinois hearing board has reprimanded an attorney who also has a pharmacy license for unauthorized communication with a represented party and conduct prejudicial to the administration of justice. The attorney initiated contact with Bayer Corporation through a consumer help line and obtained information that had been used in litigation without informing Bayer of his staus as an attorney. The conduct had drawn a rebuke from the federal ditrict court judge presiding over the litigation.

The factual predicate for the misconduct findings:

On or about June 17, 2005, Respondent contacted Bayer at the consumer help line number that was listed on the purchased package of extra-strength Neo-Synephrine and also on Bayer's web site.  Respondent left a voicemail message on the consumer help line that was listed on the purchased package for Bayer in which he identified himself as a pharmacist and asked whether Bayer had any information or articles on addiction and rebound congestion, the issues at stake in Case No. 04 CV 0114.

At no time during the voicemail message described...above did Respondent identify himself as a lawyer.

On June 20, 2005, Eileen Barry, the Senior Associate Director of Drug Safety, returned Respondent's telephone call.  Because Respondent had identified himself as a pharmacist, Ms. Barry believed that Respondent was a pharmacist inquiring on behalf of a customer, and she left a message on his voice-mail answering his initial questions about rebound congestion and Neo-Synephrine.

On June 20, 2005, Respondent again telephoned Bayer and left a voicemail message asking further questions regarding Neo-Synephrine.  Again, Respondent identified himself only as a pharmacist, not as a lawyer, during that voicemail message.

On or about June 28, 2005, Jadine Stephan, the Manager of Drug Safety for Bayer HealthCare LLC, Consumer Care Division, a subsidiary of Bayer, and a member of Bayer's control group, retrieved the voicemail message from Respondent described...above and returned his telephone call.  Believing that Respondent was a pharmacist inquiring on behalf of a customer, Ms. Stephan provided Respondent with information about discontinuance of nasal decongestants from the Textbook of Internal Medicine 5th Edition. 

At no time during the telephone conversation described...above did Respondent disclose that he was an attorney, or that he was consulting with or had been requested to assist other attorneys in any way involving Case No. 04 CV 0114.

On June 30, 2005, Respondent called Ms. Stephan and requested that she respond in writing to five specific questions regarding Neo-Synephrine as follows:

  1. how does Neo-Synephrine work, pre or post-synaptically;

  2. what causes rebound congestion;

  3. how is rebound congestion treated;

  4. are there any printed materials about Neo-Synephrine for health professionals; and

  5. was the 1% solution ever a prescription product.

Respondent also asked Ms. Stephan to telefax the answers to these questions to (847) 291-3436.

At no time during the telephone conversation described...above did Respondent disclose that he was an attorney, or that he was consulting with or had been requested to assist other attorneys in any way involving Case No. 04 CV 0114.  Nor did Respondent inform Ms. Stephan that the telefax number he gave her was the telefax number for his law practice or that the telefax would be sent to a lawyer's office.

On July 12, 2005, believing that Respondent was a pharmacist inquiring on behalf of a customer, Ms. Stephan telefaxed written responses to the questions listed in Paragraph 9 above to Respondent at the telefax number he had provided to her.

At all times related to the matters in this complaint, Respondent knew or should have known that Bayer was represented by attorneys in Case No. 04 CV 0114.

At no time did Respondent obtain the consent of lawyers from Bayer in Case No. 04 CV 0114 to contact Bayer's employees directly.

Based on the information he had obtained from Bayer and from Ms. Stephan in particular, Respondent assisted Holstein in drafting an Amended Complaint in Case No. 04 CV 0114.

I have seen disciplinary cases that suggest that a lawyer with a non-legal qualification (such as an accounting practice) can shed the "lawyer hat" for Rule 4.2 purposes. Missing from this case is an analysis of the extent to which Rule 4.2 applies to contacts with corporate employees. (Mike Frisch)

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

Caught In Revolving Door

A Tennessee attorney received a public censure from the Board of Professional Responsibility for violating Rule 1.12 (a), the revolving door rule for judges. As a juvenile court judge, the attorney presided over a child custody matter. While the case was pending, the judge was defeated in a bid for reelection. She then undertook representation of one of the parties without obtaining consent of all parties. 

The new judge ordered the attorney to report the conduct to the board and obtain an informal opinion. The attorney failed to abide the order (a separate ethical violation) and was removed from the case. (Mike Frisch)

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

Pattern Of Misconduct Results In Disbarment

The California Bar Journal reports on a recent disbarment case:

During a 16-year period since [the attorney's] 1977 admission to the bar, he committed 43 ethical violations involving 12 clients. In the most recent matter, he represented a woman in her 1995 divorce. The court granted the dissolution upon [his] completion of a judgment but he conceded he did not draft a proposal or submit it to opposing counsel.

Although he contended he agreed to represent the client only up to a particular hearing, he did not execute a fee agreement reflecting such an arrangement nor did he attempt to withdraw from the case. The client, however, testified [the attorney] agreed to appear at the hearing and to finalize her divorce and child support orders.

Over the next four years, the client had difficulty reaching [him], but when she spoke with him, he said he was working on her paperwork. She did not have the money to hire a new lawyer despite her frustrations.

At one point, the client’s child support increased, leading her to believe [the attorney] had finalized the judgment. She did not try to contact him again until 2002 when the support decreased significantly without notice. She learned at that time that no judgment was ever entered. When she contacted [him], he said he could not recall her or her case. The client sent him documents and a transcript from the hearing, but he never responded.

In 2003, the client paid another lawyer to write to [the attorney], who did not respond. In 2006, more than 10 years after first hiring [him], she hired another lawyer to finalize her divorce. During part of that time, [the attorney] was suspended for nonpayment of bar fees, yet he discussed the divorce with his client and promised to complete her paperwork. The review department found that his failure to tell the client about his suspension constituted moral turpitude.

[The attorney] has an extensive record of prior misconduct, beginning with a 1994 suspension and probation for failing to perform competently or comply with a court order and abandoning clients. He was disciplined two years later and ordered to make restitution and again in 2000.

In recommending his disbarment, Judge JoAnn Remke wrote, “This is Krohn’s fourth time in the discipline process. His misconduct spreads over 16 years and involves 13 clients. He has been found culpable of violating the conditions of his probation on two separate occasions, and has failed to cooperate with the State Bar in all four matters. Krohn’s repeated encounters with attorney discipline have neither rehabilitated him nor deterred him from committing further misconduct.”

The review panel acknowledged [the attorney's] physical and emotional problems but gave them little weight in mitigation because he failed to establish how they related to his misconduct. They also gave nominal weight to his pro bono activities because the extent of his participation was unclear.

(Mike Frisch)

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

Thursday, April 30, 2009

Promises Promises

A complaint by an associate of a law firm that had claimed damages against individual partners based on allegedly false representations regarding his partnership prospects was reinstated by the New York Appellate Division for the First Judicial Department:

Order, Supreme Court, New York County (Bernard J. Fried, J.), entered August 1, 2008, which, to the extent appealed from as limited by the briefs, partially granted defendants' motion for summary judgment dismissing the complaint and denied plaintiff's motions for partial summary judgment and to strike defendant's motion, unanimously modified, on the law, to reinstate so much of the first cause of action as alleges that plaintiff was induced to remain an associate with defendant law firm by the individual defendants' materially false representations about the firm's partnership process, and otherwise affirmed, without costs.

Plaintiff's alleged reliance on the individual defendants' statements concerning the partnership process at the law firm and plaintiff's partnership prospects was not unreasonable as a matter of law. He was an associate with no experience in applying for partnership at the firm, the firm's partnership process was confidential, and defendants, as partners, were privy to information about the past practices of the firm's Executive Committee.

As to damages, if plaintiff proves his claims, he will be entitled to the difference between the immediately payable portion of the other firm's offer, such as the signing bonus, and the sum he received from defendant law firm immediately after agreeing to remain with defendant. His damages may not include any amount based on continued employment with the other firm, since the duration and success of his career with that firm are speculative.

(Mike Frisch)

April 30, 2009 in Law Firms | Permalink | Comments (0) | TrackBack (0)

Sex For Fees Disbarment

The Florida Supreme Court disbarred an attorney for various acts of professional misconduct including entering into a fee agreement that allowed the client a $200 credit for each time she had sex with him and a $400 credit if she arranged for other females to have sex with him. Alabama had investigated the incident and imposed a suspension of fifteen months.

In another Alabama bar case, the lawyer attempted to place in evidence a video that had been edited without advising the authenticating witness that the tape was not the original. He had pled to a misdemeanor involving interference with a judicial proceeding. He also has a pending Bar proceeding in California and original proceedings in Florida, where was already on suspension.

The court imposed non-permanent disbarment:

[He] has broken numerous Bar rules. He satisfied his own sexual appetite with a client as part of a sex-for-fees arrangement. He altered evidence and caused a witness to unkowingly give false testimony. He has charged his clients excessive fees and stolen their money. He has failed to maintain a trust account. He has broken public confidence in the profession of the practice of law by neglecting his clients and failing to prosecute their cases. He has labored under a conflict of interest. He has prejudiced the administration of justice by misrepresenting facts to multiple courts. And, throughout the disciplinary process in these cases, he has been dilatory, deceitful, and evasive.

(Mike Frisch)

April 30, 2009 in Bar Discipline & Process | Permalink | Comments (2) | TrackBack (0)

Sanction Proposed For Volunteer Arbitrator

Here's a recommendation for discipline under circumstances that I have not previously encountered:

The attorney was admitted to practice in 2003. In 2005, he volunteered to serve on the Arizona State Bar Arbitration Committee. He initially failed to schedule a matter assigned to him. The matter was finally heard after the Bar's General Counsel intervened. He then did not file the decision in compliance with applicable time limits and failed to respond to repeated efforts to have him issue the decision. He also had not timely responded to the Bar investigation. Eventually, evidence was presented that the neglect was the product of "avoidant behavior that was symptomatic of depression and alcohol." 

The hearing officer recommends that the lawyer be publicly censured and placed on probation for two years.

If you are Bar Counsel, you may wish to consider sending a copy of this recommendation to the volunteer hearing committees that have morbidly overdue reports.  (Mike Frisch)

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

Prescription for Suspension

The Minnesota Supreme Court has imposed a 30 days suspension followed by two years of unsupervised probation in a matter where the attorney had given an incarcerated client prescription medication in violation of jail regulations and accepted money that he knew was subject to a court's freeze order as payment for past and future legal services. The attorney also must pass the professional responsibility portion of the bar examination. (Mike Frisch)

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

Absence Of Malice

The New York of Appeals held that a defamation action against the New York Post was properly dismissed on summary judgment. The Post had reprinted portions of a lengthy article from the Los Angeles Times about a license revocation action brought against a medical doctor for alleged overprescriptions given to Ozzy Osbourne when he had a reality television show. The headline and a line of text inaccurately suggested that the license had already been pulled. The article also correctly stated the status of the matter.The paper had printed a clarification when requested to do so.

The court majority held that the plaintiff could not show actual malice as opposed to negligence. A dissent states:

The undisputed facts are reletively simple: The New York Post took a factually-accurate Los Angeles Times article, which stated that the California Medical Board had "moved to revoke" plaintiff's license, and rewrote the article to falsely state, iin the headline and in the body of the article, that plaintiff's license had been "pulled" and "revoked". In my view, these facts raise, at the very least, a question of fact as to whether the Post acted with "actual malice".

(Mike Frisch)

April 30, 2009 in Comparative Professions | Permalink | Comments (0) | TrackBack (0)

Permanent Disbarment For Tax Crimes

The Ohio Supreme Court web page reports:

The Supreme Court of Ohio today permanently [a] disbarred Dayton attorney... for multiple violations of state attorney discipline rules arising from her failure to file returns or pay federal, state or municipal income taxes from 1979 through 2001, and failure to withhold taxes or make Social Security contributions for employees of her law firm for approximately the same period.

The Court adopted findings by the Board of Commissioners on Grievances & Discipline that [the attorney], whose law license has been under an interim suspension since the Court was notified of her 2007 conviction on a felony tax evasion charge, engaged in conduct involving fraud, deceit, dishonesty or misrepresentation and in conduct that reflects adversely on an attorney’s fitness to practice law.

The Court held that [the attorney's] willful failure to pay her own taxes and failure to withhold taxes and make FICA contributions on behalf of her employees for more than 20 years “breached duties owed to the public and the legal profession,” and said the extended time period involved and gravity of her misconduct outweighed mitigation evidence presented by [the attorney] and called for permanent revocation of her law license.

The court's decision is linked here. (Mike Frisch)

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

Wednesday, April 29, 2009

Death Escrow Violations Lead To Conviction, Suspension

The Pennsylvania Supreme Court imposed a retroactive suspension of a year and a day in a matter where the attorney had been convicted (and subject to interim suspension) of conspiracy to commit wire fraud and mail fraud. The Disciplinary Board found that the lawyer was "not a calculating participant in the scheme" and did not receive any financial gain from the scheme.

The attorney was counsel and secretary to Celestial Burial Case, which purported to be in the business of selling future casket needs, burial vaults and funeral merchandise. The company violated a law requiring that a percentage of the payments be held in trust and otherwise defrauded its customers. The funds were placed in the lawyer's IOLTA and other accounts and converted to the use of co-conspirators.

The sentencing judge in the criminal case noted that he was satisfied that the lawyer "would not commit another crime of that sort or any sort in the future." The lawyer's career had focused on poverty law and he devoted himself to a number of non-profit pursuits. (Mike Frisch)

April 29, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Client In Coma Requires Mistrial

A trial court improperly denied defense counsel's motion for a mistrial after his client had attempted to commit suicide and had been hospitalized in a coma. The trial on child rape and molestation charges was going into a third day when the suicide attempt took place. The Washington State Court of Appeals, Division II  held as follows:

Anene was clearly unable to assist in his own defense since he was not present and was unconscious in the hospital.  There was no need for a competency evaluation because it was clear that Anene was incompetent to stand trial due to his inability to assist in his own defense.  See Hahn, 106 Wn.2d at 895.  Therefore, the trial court's decision to proceed with the trial in Anene's absence clearly violated Anene's due process rights.  We hold that the trial court erred in proceeding with the trial when faced with Anene's obvious incompetence.  We reverse his conviction and remand for a new trial.

Notably, the prosecutor had commented in closing argument about the defendant's absence:

Now, there's one glaring thing that we can't ignore.  And that's where is Mr. Anene?  Certainly sitting here you must have noticed that he's gone and he is not here.  And in noticing that he's gone and is not here when he has appeared for he first part of the trial, you can consider whether or not his absence is evidence,  circumstantial evidence, because we have no direct evidence, but circumstantial evidence of a consciousness of guilt.  Where's Mr. Anene?

The prosecutor well knew where the defendant was. (Mike Frisch)    

April 29, 2009 in Clients | Permalink | Comments (0) | TrackBack (0)

Attorney Reinstated, Misconduct Was Result Of Sexual Assault By Prospective Client

The Mississippi Supreme Court has granted the petition for reinstatement of an attorney who had been on disability inactive status as well as 180 day suspension. The attorney was "brutally sexually assaulted" by the prospective client during a Sunday afternoon office visit at her office. According to the court's opinion, the attorney "suffered from severe emotional trauma, as well as crippling anxiety, depression and grief..." as a result of the incident. She thereafter failed to respond to a series of three bar complaints that led to the 180 day suspension and, later, to the disability inactive status based on a finding of post-traumatic stress disorder.

The attorney had entered into a two-year monitoring contract with the Lawyers and Judges Assistance Program, presented favorable medical testimony, received eight personal recommendations and had taken and passed the MPRE. The reinstatement case was filed under seal to preserve confidentiality of the process and to preserve the attorney's identity. The Bar had "strongly" recommended reinstatement. (Mike Frisch)  

April 29, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Pro Se Plaintiff Permitted To Add Partners In Malpractice Suit

The New York Appellate Division for the First Judicial Department affirmed a trial court order permitting a pro se plaintiff in a legal malpractice action leave to add four additional law firm partners as defendants:

Plaintiff pro se served an amended complaint without leave of the court in which he named as additional defendants four partners of the law firm that had represented him in the underlying action. Defendants moved to dismiss the amended complaint on the ground that the newly added partners had no connection with the underlying action or contact with plaintiff. The motion court, after noting that the amended complaint was improperly served without court leave, dismissed it as against the newly added partners for failure to state a cause of action as against them "in their individual capacity." Several months later, plaintiff moved for leave to add the same four partners, submitting a proposed second amended complaint that was the same as the first except that it added an allegation that the four were partners of the firm at the time of the alleged malpractice "and are each individually, jointly and severally, liable for the acts and omissions of their partners." The motion court characterized the claim against the proposed four new defendants as "colorable," citing Partnership Law § 26, and granted plaintiff leave to add them.

On appeal, defendants do not argue that the amended complaint fails to state a cause of action as against the four newly added defendants, but rather that the court, in permitting their joinder, violated the law of the case doctrine, exceeded its authority by exercising appellate jurisdiction to sua sponte vacate its own order, and erroneously granted what was actually an untimely motion to reargue. The law of the case doctrine, however, is not implicated because the court did not alter a ruling by another court of coordinate jurisdiction but rather its own ruling (Wells Fargo Bank, N.A. v Zurich Am. Ins. Co., 59 AD3d 333 [2009]). "[E]very court retains continuing jurisdiction to reconsider its [own] prior interlocutory orders during the pendency of the action" (Liss v Trans Auto Sys., 68 NY2d 15, 20 [1986]), and may do so "regardless of statutory time limits concerning motions to reargue" (id.). Thus, even if plaintiff's motion for leave to add the four partners were a belated motion to reargue the prior order dismissing the action as against those partners for failure to state a cause of action, the court had discretion to reconsider its prior order, sua sponte, and correct it. Such discretion was properly exercised here in view of plaintiff's pro se status.

(Mike Frisch)

April 29, 2009 in Clients | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 28, 2009

Substantially Similar

An attorney was summarily disbarred by the New York Appellate Division for the First Judicial Department. The court described the basis on its decision to disbar as a result of a federal felony conviction:

During his plea allocution respondent admitted that between 2001 and 2005 he, along with his father, his brother and others, engaged in an insider trading scheme after receiving non-public, material information from his father who was an employee at Taro Pharmaceutical Industries, Ltd. Respondent admitted that he knew that when he traded in Taro securities he was engaging in conduct that violated the securities law by executing options trades and by profiting on that information, and that he tipped off others regarding the inside information so that they too could profit. The criminal information to which respondent pled guilty alleged that he received $66,000 in kickbacks from a tippee for the inside information. At sentencing, respondent acknowledged that he obtained an "ill-gotten" personal profit of between $600,000 and $800,000 as a result of his participation in the insider trading scheme. He further conceded that he would lose his law license as a result of his criminal actions.

The court concluded that summary disbarment was appropriate because the federal offense was "substantially similar" to the state crime of insider trading. A news report on the underlying case is linked here. (Mike Frisch) 

April 28, 2009 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Failure To File Leads To Suspension

The South Carolina Supreme Court imposed a 90 day definite suspension of an attorney who had self-reported that he had failed to file state and federal income tax returns from 2000 to 2007. The lawyer noted that no criminal prosecution in connection with the conduct is either pending or anticipated. (Mike Frisch)

April 28, 2009 in Bar Discipline & Process | Permalink | Comments (3) | TrackBack (0)

Naming Names

Courtesy of the very fine Florida ethics web site sunEthics is an interesting case involving improper closing argument by a prosecutor in a murder case. The Florida Third District Court of Appeal concluded that the evidence of guilt was overwhelming and affirmed the conviction. The prosecutor had contrived an incriminating  dialogue between the defendant and another, that the defendant was not a "nice guy,"and that witnesses were afraid to come forward. The trial judge had compounded the error by overruling defense objections.

 A reluctant concurring opinion notes:

The only viable argument in this case is that the errors were harmless. I must reluctantly agree. Inexplicably, the prosecutor in this case felt obligated to push the envelope by inventing dialogue, attacking [the defendant's] character and blaming the lack of witnesses on fear of [the defendant]. The prosecutor must have felt that the admissible evidence in this case was insufficient to convict, otherwise he would not have injected such obvious error into the proceedings.

Over the years, it has been my unfortunate experience to see a long procession of assistant state attorneys repeatedly violate clear precedent in their zeal to convict. It is either that these prosecutors are untrained, that they do not trust juries, or that they feel that their behavior has no consequences. They do not even have to face an appellate panel's questions during oral argument. If nothing else, I will henceforth publish their names so that thier questionable tactics appear in the permanent record of the Southern Reporter.

One remedial possiblity is bar discipline. (Mike Frisch)

April 28, 2009 in Professional Responsibility | Permalink | Comments (1) | TrackBack (0)