June 2, 2009
Socratic Ethical Violation
The North Carolina Court of Appeals affirmed all findings of misconduct save one and, as a result, remanded the matter for a sanction recommendation in a matter involving a conflict of interest in a real estate transaction:
...with this sole exception, the DHC properly concluded defendant committed the offense or misconduct. N.C. State Bar v. Talford, 356 N.C. 626, 632, 576 S.E.2d 305, 309-10 (2003). We find that the DHC's conclusions derive from complications which inherently flow from a violation of Rule 1.9, which both parties agree was violated in this case. The representation of a second client would have necessarily impeded defendant's ability to satisfactorily complete the representation of the previous client. Negotiating a compromise or settlement between two clients is always problematic. Failing to completely disclose all facts to both clients creates ethical dilemmas such as those faced by defendant. Zealous representation of one client shortchanges the other, and disclosure of confidential information to one violates a basic duty to the other. Defendant's defense that his representation of the Davids had ended with the closing is undermined by his efforts to see that restrictive covenants were subsequently recorded. It is clear that the prior representation had not ended, when the second representation began. Defendant drank the hemlock of multiple representations too often.
June 1, 2009
"I Would Have Done Differently If I Knew You Were Watching"
An Arkansas Circuit Court judge is the subject of a proposed removal from the bench. According to the report from KSLA 12:
A panel of the state committee that disciplines judges has recommended that Circuit Judge L.T. Simes III of Phillips County be removed from office. The panel says Simes (Sims) showed "a fundamental lack of knowledge of substantive law" or possibly committed perjury over an estate case he carried from his private practice into his time on the bench.
At a hearing last month, Simes said he had been fired from acting as administrator of an estate, but records show he billed for work on the case after he took office in 1997.
A three-person panel of the Arkansas Judicial Discipline and Disability Commission recommended in a Friday filing that the full commission act to remove Simes from office.
The panel quoted Simes saying during the hearing that, "I would have done differently if I knew you were watching."
The panel said Simes' explanations, if true, "demonstrate a fundamental lack of knowledge of substantive law and the obligations of a circuit judge. If untrue, then the explanations constitute perjury. In either event, they are not worthy of belief."
The full nine-member commission meets next in April. That's the soonest the commission is likely to vote.
A woman answering the phone at Simes home Saturday evening said the judge was not available for comment.
The judge recently sought and received an ethics opinion from the Judicial Ethics Advisory Committee concerning the propriety of his forming, along with his wife and son, a non-profit corporation (Holy Spirit 777, Inc.) to sell recordings of his gospel music and to use the proceeds for charitable purposes. The committee opined that the activity was permissible so long as he did not lend the prestige of his judicial office to the enterprize. He had removed the photos of himself in his judicial robe from the corporation's web page. (Mike Frisch)
The Run, The Park & Other Things
Also from the California Bar Journal:
[An attorney] was suspended for two years, stayed, placed on three years of probation with an actual two-year suspension and he was ordered to take the MPRE, comply with rule 9.20 and prove his rehabilitation. The order took effect Dec. 21, 2008.
[The attorney] sought review of a State Bar Court hearing judge’s recommendation that he be disbarred following misdemeanor convictions for trespassing and fleeing from a park ranger. The review court found that neither conviction involved moral turpitude and reduced the disbarment recommendation to a suspension. However, Judge JoAnn Remke wrote, “It is clear that [he] has problems dealing with authority and managing his anger.”
Both incidents started with what Remke described as “fairly innocuous but improper behavior,” but when challenged, [he] reacted with “irrational and unlawful responses.”
In the first case, [he] was jogging on private property in 1997 when the property owner asked him to leave. He ignored the request but eventually stopped and kicked the property owner’s truck before running away. Another individual saw him jogging on the property a few months later and also asked him to leave; again he responded by kicking the woman’s car.
[He] pleaded guilty to trespassing and two vandalism charges were dismissed.
In 2004, [he] was running in an open space preserve with his running club when a ranger spotted him putting a leash on a dog who had been off-leash. When the ranger asked him to stop, he ran away. An hour-long search for [him] by three rangers was unsuccessful, but they were able to learn his identity and he was charged with resisting an officer and fighting in a public place. He pleaded no contest to the latter charge.
In a third, uncharged incident, [he] attended a function where the planners had asked that he be kept out. He gave a phony identity to a park ranger and eventually was escorted from the function by police.
The court considered a second disciplinary recommendation, which is pending, as a prior discipline record. In that matter, the review department found that [the attorney], who is also a physician, made false and misleading statements and omissions on various applications for hospital staff privileges and continued to use the M.D. designation even after criminal charges were brought against him. The review department has recommended a six-month suspension.
“When viewed in its entirety, the record clearly confirms that respondent fails to recognize the wrongfulness of his actions,” Remke wrote. His “holistic problems with authority raise a serious concern regarding his fitness to practice.”
The court gave some mitigation to [his] volunteer work at Stanford University, the park service and other community service, but said his testimony about treatment for mental health problems was not supported by expert testimony.
There must be, as Paul Harvey used to say, a "rest of the story" here. I can only wonder how probation will work out. (Mike Frisch)
Find A Lawyer
From the web page of the California Bar Journal:
The State Bar will create an online “Find A Lawyer” program for the public after a divided board of governors approved the project last month. But if a consumer is getting a divorce, wants to have a will drafted or has any other problem needing a legal solution, the program may not help — the board refused to allow searches by practice area.
In addition to information already available on the bar’s Web site — every California lawyer’s name, address, phone number and educational background — visitors to the site will be able to search by languages spoken, see a lawyer’s picture and his or her address displayed on a map, and link to an attorney’s Web site.
But practice area will not be displayed.
“That’s the only part that’s user-friendly,” objected public member Jeannine English, who urged the board to dump the whole project. “I don’t know why we’re trying to hide this from the public. It’s hypocritical to not allow the public to search by practice area.”
“If we’re going to do a half-assed version, we shouldn’t do it at all,” agreed George Davis, another public member.
Although English and Davis were joined by two others in trying to throw out the program, the rest of the board refused to go along.
Find A Lawyer has been in the works for a year, but ran into opposition from local bar associations, who feared it would compete with their lawyer referral services. Executives of California Lawyers’ Associations (ECLA), a group representing bar associations, also objected to a searchable online directory. A task force made up of board members and representatives of local bars could not reach consensus.
The sticking point was self-designated specialty, which raised public protection red flags, said Tom Kuhnle, past president of the Santa Clara County Bar Association and a task force member. He argued that permitting a lawyer to declare himself an expert on the State Bar’s Web site confers some credibility and gives the appearance that the bar endorses that assertion. Disclaimers saying the bar has not vetted the lawyers’ claims are not good enough, he added.
In addition, Kuhnle said a searchable directory meets the definition of a lawyer referral service, but Find A Lawyer would not meet some LRS requirements, including an obligation that panel members carry malpractice insurance. “We’ll have an LRS that doesn’t follow the rules,” he said.
He also said the availability of practice areas could allow commercial vendors to harvest information about lawyers and develop a database of customers, “something our members don’t want.”
But John Hodson, chair of the bar’s Family Law Section, said without a searchable practice area, Find A Lawyer will be worthless. He called public protection arguments “nonsense,” pointing out that many consumers now find lawyers through the Yellow Pages. He accused the LRSs, with just 5,100 members statewide, of trying to protect their financial interest and said diverting potential clients to an LRS rather than a list including practice areas is indefensible. “It’s silly to think people shouldn’t be able to look (at practice areas). It’s insulting to suggest the State Bar abrogates its duties and leaves the public unprotected.
“You’d think this concept is going to refer people to 160,000 John Dillingers out there.”
Some board members saw the proposal as a good member service and viewed it as a compromise that also allows the bar to preserve good relations with local bars. Several, including San Diego District Attorney Bonnie Dumanis, who represents District 9, said they believe allowing lawyers to designate an area of practice would be detrimental to public protection and could harm the public.
Richard Frankel, representing Contra Costa County, objected to the entire concept, arguing that “the State Bar has no business in Find A Lawyer. That’s not our mission. This isn’t what we do for a living.”
And John Peterson of Fresno said there is no evidence Find A Lawyer would harm LRSs’ financial interests. Emphasizing that lawyers self-identify in the Yellow Pages and other attorney listings, he said, “It’s absolutely silly to have a search engine that doesn’t include practice areas.”
After lengthy debate, the board approved Find A Lawyer, without the practice area component, by an 11-8 vote. Acknowledging the nature of the compromise, Los Angeles governor Howard Miller said, “It’s worth giving up searchability at this stage. This is Version 1.0. It’s a beginning, not the end.”
Proposed Public Reprimand Rejected
The Delaware Supreme Court ordered a one-year suspension of an attorney who had falsely notarized documents in a series of real estate transactions in which he was the purchaser. He also had failed to pay transfer taxes on one of the transactions and restated the purchase price on two other transactions in order to substantially reduce his transfer tax liability.
The court rejected a joint proposal of a public reprimand with certain practice restrictions. The attorney began investing in real esate while working in mergers and acquisitions at Skadden Arps. He moved to another firm and left "after his law firm discovered certain irregularities in its files" and self-reported the transfer tax problem to the Office of Disciplinary Counsel. The ODC discovered the false notarizations in the course of its investigation.
The court concluded that the misconduct was intentional, rather than negligent (as the Board on Professional Responsibility had found) and noted that the lawyer's claims of negligence had not been tested through cross-examination. (Mike Frisch)
An attorney who did not properly close his practice was reprimanded by the South Carolina supreme Court. The facts:
Due to a down turn in business and resulting economic hardship, respondent closed his law practice. Respondent admits he failed to comply with Rule 1.17 of the Rules of Professional Conduct, Rule 407, SCACR, in closing his practice. In particular, respondent admits he failed to personally safeguard client files in that he left the files in the hands of his paralegal instead of personally supervising the delivery of the files to a title insurance company. In addition, he admits there were communication failures concerning the delivery of the files to the title insurance company. Specifically, respondent failed to confirm his arrangements for delivery of files to the title insurance company management and that, at the time of delivery, a number of files were still awaiting final post-closing activities such as the issuance of final title policies.
I suppose we will see more of these issues in the current economic climate. (Mike Frisch)
May 31, 2009
Child Pornography On Hard Drive Leads To Bar Discipline
The web page of the Tennessee Board on Professional Responsibility reports that an attorney was suspended for five years as a result of his conviction for possession of a computer hard drive that had three or more images of child pornography. An earlier description of the proceedings: