April 28, 2009
Suspicious But Not Unethical
A Louisiana hearing committee found "clear and convincing evidence of a cavalier manner of handling legal fees and delineation of representation" but no disciplinary violations in a case where the lawyer was charged, among other things, in assisting and failing to rectify client fraud. The committee recommends dismissal of the charges.
In one matter, the lawyer's incarecerated client (Alexander) told another prisoner that the lawyer would represent him for $5,000 and a Rolex watch. The client's wife borrowed the money, which the lawyer received by cashier's check along with the watch. The lawyer applied the payment to his client's fees and provided no services to the other prisoner. When the wife contacted him, he refused to return the payment and the watch. The second matter involved the same client, another prisoner, and another unreturned fee of $5,000. The fees were returned after the Bar had filed charges.
The attorney indicated that the client was president of the Louisiana chapter of the Hell's Angels. He was told by the client that "his people" would deliver money for his fees, and that he understood that the payments were for the ongoing representation of that client.
The committee found that the evidence did not establish that the lawyer knew he was being paid to represent the two complaining prisoners:
While the transactions involved are certainly susceptible to being interpreted as "suspicious," the evidence presented does not reach the threshold necessary for proof of a violation of the Code of Professional Responsibility. On its face, and against the "clear and convincing" standard, the evidence presents nothing more than justification for suspicion; taken at face value, the evidence leads only to the conclusion that Respondent was not careful about his record keeping, or the delineation of his business arrangements...There is nothing in the evidence from which we can conclude that Respondent did not in good faith believe the fees in question to have been for payment on Jesse Alexander's account.
April 27, 2009
Yes, With Restrictions
A new opinion from the Oklahoma Judicial Ethics Advisory Panel:
Question(s): May a judge, at night and non working days, be employed in checking land records for persons engaged in oil and gas leasing operations?
Facts: The judge asks if he may be employed by his brother, who is an independent petroleum land man, in checking records at time indicated in the question, and for which he would receive compensation?
Answer(s): Yes, with restrictions.
Comment: A judge may not practice law, offer legal advice or services except in certain family matters as specifically approved in Canon 4. The question may arise as to whether the services performed by a petroleum land man in checking mineral interest owners from the land records in the office of a County Clerk constitutes legal services. The judge propounding the question advises that he has checked with the Chairman of the Oklahoma Bar Association Committee on Unauthorized Practice of Law and was advised that the Committee has never been asked to consider if working as a land man, in any capacity, is the practice of law. We note that the failure of such question being addressed does not answer the question, but would suggest that these activities have been numerous and long-standing in the State of Oklahoma and that the absence of such inquiry would indicate that the legal profession has never considered the same to be the practice of law.
It is our opinion that the compilation of ownership from these records and of itself does not constitute the ‘practice of law.’ However, if the party performing those services renders an opinion as to the ownership of those interests, this would constitute the practice of law and would be prohibited.
"Do The Right Thing"
The Louisiana Attorney Disciplinary Board has recommended a one-year stayed suspension for unauthorized practice of law and representing a client without the authority to do so. The attorney had (as in many cases we have recently reported from various jurisdictions) been suspended for failure to fulfill CLE obligations. He was retained by a bail bonding company named "Do the Right Thing" to seek bond review for a criminal defendant. The board also concluded (contrary to a hearing comittee) that the lawyer was not authorized by the defendant to represent him: "it is clear that [the lawyer] was not authorized by [the client] to file the motion to reduce bond, and that he filed the pleading solely at the direction of the bail bond company." The board found a laundry list of violations (making the case useful to a PR professor looking for an exam hypo) but found that "the goal of protecting the public can be served by fully deferring [the] suspension and imposing a one year probation." (Mike Frisch)
Spouse's Business Transaction Violates Rule
A Colorado attorney was publicly censured based on his conditional admission that he had "negligently failed to terminate an attorney-client relationship when he learned that his wife was involved with a business transaction with his client. He therefore effectively entered into a business transaction with his client without appropriate disclosures. [He] also failed to make reasonable efforts to ensure that his wife/employee's conduct was compatible with his professional obligations." (Mike Frisch)
Conviction Affirmed For Murder Of Priest
A decision today from the Massachusetts Supreme Judicial Court affirmed the conviction of a defendant already serving a life sentence who had murdered a priest convicted of child molestation. The defendant is described as follows:
The defendant founded his own ministry and church, in 2000, after a correspondence course. He designed a crest for his Church of the Chosen Ones, obtained a trademark and copyright, and wrote his own Bible. He fantasized that the Pope would make him "Saint Joseph." He stated that, before the killing, he wrote a document that was found in his cell; it stated that his mind was racing and he could not read or concentrate. He testified that this mental state commenced at the time he overheard the victim talking about a plan to abuse children by starting a mission in South America. The defendant testified that he spoke to a prison deacon about his concerns and was told that the victim could start a ministry under any religion. The defendant could not get these concerns out of his mind. During a period in the disciplinary unit in the days preceding the killing, the defendant wrote a document that contained statements that the world wants to stop pedophilia, the victims of sexual abuse want justice, Saint Joseph would do it, and the Pope would be pleased.
On the day of the killing, the defendant had planned to enter the victim's cell earlier than he did, but there were too many inmates around. At first he thought that "God didn't want it to happen," but then the correction officer opened all the cell doors after lunch. The defendant fantasized that the Pope would give him absolution. The defendant testified that he saw himself as the individual designated, by a higher power, to put a stop to pedophilia. He stated that when he was killing the victim, he was thinking about his own abuse and the victim's arrogance.
The court rejected a claim of ineffective assistance of counsel:
The defendant has not met his burden of showing that substantial conduct or omission by his counsel likely influenced the jury's decision. As the judge stated in his written decision, the defense in this case was lack of criminal responsibility. The evidence that the defendant was guilty of the murder was overwhelming, even apart from his statements, "to anyone and everyone" who would listen, that he did it and was proud of it. The defendant was the only one in the victim's cell; he had jammed the door shut; the victim was lying on the floor with a ligature around his neck that was made in part with the defendant's own articles of clothing. The defendant claims "that additional evidence should have been adduced from correction department officers and officials, as well as through or by a post-death investigation conducted by an ad hoc commission." We agree with the judge that "[w]ith the exception of his complaint that his attorney failed to introduce records or call other witnesses who may have offered testimony about his psychiatric history, none of his other complaints ... have any relevance to the issues material to the trial of this case." Moreover, as the judge stated, the defendant, his parents, and expert "were given wide latitude in their testimony concerning his past social and psychiatric history, which history was largely uncontested by the Commonwealth.... His expert was permitted to testify without limitation, to the defendant's history and the contents of any and all records of past psychological placements, examinations, observations, and diagnoses ... for support of his opinion testimony concerning the mental state of the defendant on the day of the offense." The judge's conclusion that the evidence material to his defense that the defendant claims should have been offered is cumulative or speculative is supported in the record. There was no abuse of discretion.
The case is Commonwealth v. Druce. (Mike Frisch)
Right To Fire Retained Counsel
The Tennessee Supreme Court has held that retained counsel who has been discharged by the client must inform the court of the client's directive as soon as discharged: "since our earliest days, our system of justice has been reluctant to force a lawyer on an unwilling client....clients should not be forced to entrust their legal matters to an unwanted lawyer. Accordingly, clients may discharge a retained lawyer whenever they cease to have absolute confidence in the lawyer's integrity, judgment, or professional competence." The focus of the court in such circumstances is not on whether there is good cause, but rather whether (i) the client understands the consequences of firing the lawyer and (ii) will be significantly prejudiced. Finally, the court must consider the impact of granting withdrawal on the orderly administration of justice.
The court vacated the judgment and remanded the matter for a hearing. If the court below concludes that the waiver of the right to counsel was knowing and intelligent, the client will be given an opportunity to retain new counsel for the appeal.
The criminal case involved charges of murdering an infant child. (Mike Frisch)
Not In Jest
The New York Appellate Division for the Fourth Judicial Department imposed a term of suspension of two years or until federal probation is terminated, whichever period is longer of an attorney convicted of conspiracy to violate the Mann Act, which involves transportation of an individual to another state to engage in prostitution. The court determined that the offense was a serious crime but noted the attorney's "previously unblemished record and expression of extreme remorse." The suspension will also continue until further court order.
According to this report in the Daily Independent Online, the lawyer was the clerk of a Supreme Court judge who has pleaded guilty and is awaiting sentencing in the same matter. The report states that the matter arose from an investigation of "human trafficking by a men's organization known as the Royal Order of Jesters."
The Buffalo Law Journal reports on the judge's plea:
Tills admitted that in October 2005, he, along with John Trowbridge, Michael Stebick and others, drove a woman from Buffalo to Kentucky so she could be available to engage in prostitution with members of a men’s organization. Tills was a member of that organization.
As part of his plea proceedings, Tills admitted engaging in similar conduct five more times.
This link should take you to the court's web page. The case is Matter of Stebick, decided April 24, 2009. (Mike Frisch)
April 26, 2009
Put It In Writing
An Arizona hearing officer has recommended a censure with one year of probation for misconduct that involved, among other things, violating Arizona Rule 1.5 (b). The attorney had twice raised his hourly fee by $25 without notifying the client of the increase in writing. The other violations involved a tardy response to a bar investigation and running afoul of a previous probation imposed as a result of the suspension of his real estate law certification. He had used letterhead that continued to assert that he held the certification. (Mike Frisch)