Friday, June 12, 2009


The Pennsylvania Supreme Court accepted a consent discipline proposal and imposed a public censure of an attorney convicted of misdemeanor offenses as a result of a bar fight. He had immediately notified bar authorities of the disposition of the criminal charges. The attorney had been sentenced to a term of imprisonment, the first four months on SCRAM (secure continuous remote alcohol monitor) house arrest followed by six months SCRAM monitoring.

The fight took place in the Wildcat Saloon in Archbald, where the attorney had "physically assaulted [the victim] by punching him in the head several times, causing physical injuries including a black eye, headaches and hearing loss, believing that [the victim] or his girlfriend had thrown a beer on [the lawyer's] brother's fiancee."

From the attorney's web page:

Simply stated, if [the] Attorney...or his office represents you, there is no doubt that the other side will know that you are intelligent enough to hire an attorney that is skilled, compassionate and aggressive. An attorney that will obtain a fair settlement for you or will take the case to trial and put the matter to twelve jurors and have them enter a substantial verdict in your favor.

(Mike Frisch)

June 12, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Hearing No Objection...

A summary judgment granted to a law firm in a suit for fees was affirmed by the New York Appellate Division for the Second Judicial Department:

The plaintiff established its prima facie entitlement to judgment as a matter of law by presenting evidence that the defendant not only received and retained, without objection, invoices for legal services rendered, but also made partial payments on the invoices. In opposition, the defendant failed to raise a triable issue of fact. The defendant failed to specify when he orally objected to the bills and the substance of the conversations in which he allegedly objected. (citations omitted)

(Mike Frisch)

June 12, 2009 in Clients | Permalink | Comments (0) | TrackBack (0)

It's A Bird, It's A Plane, No...

A recent ethics opinion from Alaska weighs in on the Super Lawyer controversy:

The use of lawyer rankings in advertising and promotional press releases has become controversial. Super Lawyers has received the most attention in recent ethics opinions. 

A minority of jurisdictions has determined that references to rankings in a publication such as Super Lawyers are unethical. For example, the New Jersey Supreme Court’s Committee on Attorney Advertising ruled that advertising an attorney’s inclusion in Super Lawyers is a violation of Rule 7.1 because it is likely to create unjustifiable expectations and compares the “Super Lawyers” to non-“Super Lawyers.” This New Jersey Opinion has been stayed pending a challenge in the New Jersey Supreme Court. The New York Appellate Division proposed an amendment to their disciplinary rules that prohibited “any nickname, moniker, motto, or trade name that implies an ability to obtain results.” On July 20, 2007, the United States District Court found the amendment to be an unconstitutional limit on free speech.

The majority view regards advertising that mentions a rating received from a commercial publication to be ethically permissible. The State of Connecticut Statewide Grievance Committee offered a particularly thoughtful analysis. The Connecticut Committee determined that an unexplained reference to an attorney as a “Super Lawyer” in an advertisement is “potentially misleading and confusing to consumers.” The Connecticut Committee recognized that the Super Lawyer selection process is “subjective and arbitrary,” but decided that a truthful reference to a ranking by Super Lawyers is not unethical if sufficient information is provided to put the reference in context. To alleviate potential confusion, the Connecticut Committee requires that the reference to “Super Lawyer” must be explained. As an example, the Connecticut Committee indicated that announcing that a lawyer has been designated a Connecticut Super Lawyer in Connecticut Super Lawyers 2007 magazine is allowed, but stating simply that a lawyer is a Super Lawyer is not allowed. 

The conclusion:

Lawyers and law firms may refer to a listing in Super Lawyers, Best Lawyers, or another commercial professional ranking so long as the reference includes the publication name, date, and the practice area, if one was specified, in which the lawyer was ranked or selected. By issuance of this ethics opinion, the Alaska Bar Association is not endorsing any of the commercial ranking systems referenced herein. 

Specifically, a lawyer shall utilize essentially the following format when including a lawyer’s professional ranking in advertising materials:

Attorney’s Name was selected for inclusion in Publication Date.

Thus, for example, a lawyer may state:

Jane Doe was selected for inclusion in Alaska Super Lawyers 2008. 

If the ranking was limited to a specific area of practice, such information shall be included as follows:

Attorney’s name was selected for inclusion in Publication Date in the area of field of practice.

Again, for example, the lawyer could state:

John Doe was selected for inclusion in Best Lawyers in America 2008 in the area of family law.

(Mike Frisch)

June 12, 2009 in Law & Business | Permalink | Comments (1) | TrackBack (0)

Return To Sender

A New York solo practitioner sued another New York solo practitioner under the Telephone Consumer Protection Act after receiving 14 unsolicited fax communications. The sender specializes in bringing attorney malpractice actions. The New York Supreme Court had granted summary judgment as to liability on a count of the cause of action, which was affirmed by the Appellate Division.

The New York Court of Appeals reversed the grant of summary judgment, based on its conclusion that the 14 faxes were "informational messages" rather than "unsolicited advertisements." The sending attorney "furnished information about attorney malpractice lawsuits; the substantive content varied from issue to issue; and the reports did not promote commercial products. To the extent that [the sending attorney] may have devised a way to impress other attorneys with his legal expertise and gain referrals, the faxes may be said to contain, at most, 'an incidental advertisement' of his services, which 'does not convert the entire communication into an advertisement'." (Mike Frisch)

June 12, 2009 in Law & Business | Permalink | Comments (0) | TrackBack (0)

Illinois Bar Charges

The Illinois Administrator has filed disciplinary complaints in two matters. One complaint alleges that the attorney wrote a will for a client a month after the client had surgery for brain cancer. The lawyer and his spouse were designated beneficiaries. The charges recite that the designation was pursuant to client's wishes but affected the validity of the will due to the alleged failure to advise the client to seek independant counsel. The second (unrelated) matter involves charges relating to a criminal conviction for the possession and reproduction of child pornography. (Mike Frisch)

June 12, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Activist Judge Reversed

The Maryland Court of Appeals has reversed criminal convictions and ordered new trials in two separate cases that were tried before the same Baltimore City Circuit judge. The court held that the judge's "repeated and egregious behavior created a fundamentally flawed atmosphere, which prevented the defendants from obtaining fair and impartial trials." The court found plain error in both matters. Notwithstanding the lack of defense objection, the court "also concluded that the failure to object may only be countenanced in those instances in which the judge exhibits repeated and egregious behavior of partiality, reflective of bias..." The opinion quotes extensively from the transcripts of the trials.

No plaudits to the lawyers: "It is clear in both cases that neither prosecutors presented the cases well, nor did the defense attorneys adequately represent their clients."

There is a dissent that takes issue with the view that the judge overstepped his proper role and would affirm the convictions in both cases.

As an aside, the ABA Journal picked up on this case and identified the judge (the opinion does not), who just happens to be my first boss. (Mike Frisch)

June 12, 2009 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Thursday, June 11, 2009

Call for Papers for "Law Firm Evolution: Brave New World or Business as Usual?"

GULC[posted by Bill Henderson] 

The Center for the Study of the Legal Profession at Georgetown University Law Center has issued a call for papers for a March 2010 conference.  The topic could not be more timely:  "Law Firm Evolution: Brave New World or Business as Usual?".  Based on numerous conversations I have had with law firm insiders, my money is definitely on the former.  The full details can be found online here.

June 11, 2009 in Conferences & Symposia | Permalink | Comments (0) | TrackBack (0)

False Testimony In Disciplinary Case Draws Disbarment

An attorney who was found to have engaged in 36 counts of ethics violations involving five clients was disbarred by the New York Appellate Division for the First Judicial Department. The lawyer had not helped his cause by attempting to mislead the Departmental Disciplinary Committee:

...although not specifically emphasized in the Committee's papers, the Referee succinctly summarized the factor which separates and defines this matter from all other precedent by stating "[P]erhaps the most serious charge and offense is the deliberate misrepresentations to the Disciplinary Committee." It is not often that this Court is asked to rule on a respondent who has had formal charges sustained against him for giving false testimony in deposition before the Committee during its investigation, in addition to his other misconduct which resulted in disciplinary proceedings. Respondent's lack of candor before the Committee, the Referee and Hearing Panel normally arises in the context of aggravation on the issue of sanction. Here, however, as the Referee correctly noted, respondent's pattern of untruthful testimony while under oath before Committee staff constitutes significant misconduct, entirely independent of all his other misconduct which already justifies his disbarment. Unlike the respondent in Nuzzo...the respondent herein did not confine his false testimony to one deposition involving one client's case. Rather, his false testimony extended through several depositions in 2007, and it involved the matters of three of his clients, as well as his misuse of his client escrow account in connection with evading his judgment creditors and State taxation authorities. Five of the twelve sustained charges alleging violations of DR 1-102(A)(4) involved this misconduct.

(Mike Frisch)

June 11, 2009 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Lawyer Sanctioned For Initiating Guardianship Against Former Client

In a case that evaluates the difficulties in representing an elderly client with potentially diminishing capacity, a 5-4 majority of the Washington State Supreme Court imposed an 18 month suspension of an attorney for initiating a guardianship proceeding against a former client. The misconduct was based on findings that the lawyer had acted without any investigation of the client's alleged incapacity and contrary to her lawful objectives. 

The court underlined its concerns about the impact of its decision on lawyers who face such circumstances:

While not condoning [the lawyer's] actions in any way, we are concerned
that this matter might send the wrong message to lawyers who represent the
elderly -- whether they specialize in elder law or are general practitioners who
have represented a family or a client for many years.   Issues of a client's
competency arise in many forms.  However, one scenario which is regrettably
not uncommon is for a person of advanced years to fall under the influence of
a friend, neighbor, or distant family member.  It may come to the attention of
a lawyer that an impaired client has fallen under such influence.  Often, the
friend or distant family member has taken the client to his or her own lawyer
who has prepared a new will cutting out other family members and frustrating
careful estate planning.  Under such circumstances, if the lawyer reasonably
believes that her client is suffering diminished capacity and is under undue
influence, the lawyer may take protective action under RPC 1.14 without fear
of provoking charges of ethical misconduct by the WSBA seeking disbarment.  A lawyer's decision to have her client declared incompetent is a
serious act that should be taken only after an appropriate investigation and
careful, thoughtful deliberation.  

We emphasize that [the lawyer's] actions are distinguishable.  First, [he]
failed to make any reasonable inquiry into [the client's] competency.  Second,
he knew or had information available to him to suggest [she] had a
"sanity" or mental status exam and was determined to be competent within
six months of filing the guardianship petition.  Third, it seems uncontroverted
that [he] believed [she] was competent just months before he filed
the guardianship petition, when she signed the estate planning documents 
[he]  prepared for her.  Finally, [he] fails to explain why his epiphany
that his client was incompetent seems to have occurred on the very day he
discovered that she had retained new counsel and wanted to discharge him.
Lawyers who act reasonably under RPC 1.14 are not subject to discipline.  
[He]  did not.

There is a dissent that accuses the majority of "selectively [using] the facts to arrive at the conclusion it desires" and would impose disbarment.:

The majority describes this case as one of an attorney who has "practiced law for 34 years without a disciplinary history, and his misconduct is isolated to a single client and a single legal action lasting over approximately two months, and does not fall within the type of conduct for which disbarment is usually imposed for a first offense."        Majority at 31.  In so doing, the majority selectively uses the facts to arrive at the conclusion it desires: a suspension. 

The majority's analysis ignores that Stephen K. Eugster failed to abide by Mrs. Marion Stead's objectives and filed a guardianship petition that he knew lacked any factual or legal basis against Mrs. Stead, a vulnerable victim.  If successful, the guardianship petition would have financially benefited Eugster through attorney fees, but instead, it ended up costing Mrs. Stead $13,500 and her relationship with her son.   The majority's reasoning discards our well-settled attorney discipline sanction analysis  in favor of a confusing, contradictory scheme that lacks any standards.  I cannot join in the majority's incomplete and flawed reasoning.  The only conclusion that can be drawn from our well-settled sanction analysis and precedent is Eugster should be disbarred.

(Mike Frisch)


June 11, 2009 in Bar Discipline & Process | Permalink | Comments (2) | TrackBack (0)

Certifications Expanded In Florida

The Florida Supreme Court has adopted amendments to the rules governing the Bar that permit certification of specialty in the areas of education law and adoption law. The amended rule, which takes effect immediately, is attached to the court's order. (Mike Frisch)

June 11, 2009 in The Practice | Permalink | Comments (0) | TrackBack (0)

Reconsideration Of Misappropriation Sanction Rule Narrowly Averted

The District of Columbia Court of Appeals recently entered an order denying en banc consideration of a decision of a three judge division of the court disbarring a lawyer for intentional misappropriation. The division had applied the Addams decision, which mandates disbarment for intentional or reckless misappropriation of entrusted funds absent extraordinary circumstances. The court has only found an exception to the rule of Addams for recovering alcoholics whose active alcoholism caused the misconduct.

The notable aspect of the court's order is that the decision was 5-4. This suggests to interested observers (or at least to me) that the strict rule regarding sanctions for misappropriation is in danger in the District of Columbia. Time will tell. (Mike Frisch)

June 11, 2009 in Bar Discipline & Process | Permalink | Comments (2) | TrackBack (0)

Relief Reversed

The Rhode Island Supreme Court has held that a motions judge improperly granted post-conviction relief to a defendant who claimed that his trial counsel labored under an impermissible conflict of interest. The lawyer had simultaneously represented a co-defendant in the criminal case on an unrelated matter. The court concluded that the claim was barred both on procedural and res judicata grounds. (Mike Frisch)

June 11, 2009 in Clients | Permalink | Comments (0) | TrackBack (0)

Stayed Suspension For Misconduct As Public Official

From the web page of the Ohio Supreme Court:

The Supreme Court of Ohio today imposed a six-month suspension, with the full term of suspension stayed on conditions, against the law license of Cleveland attorney George L. Forbes.

The Court adopted findings by the Board of Commissioners on Grievances & Discipline that Forbes engaged in conduct that reflects adversely on his fitness to practice law by filing false financial disclosure statements and accepting improper gifts while serving on the Bureau of Workers’ Compensation (BWC) Oversight Commission.

During his service on the commission and its investment committee from 1995 through 2005, Forbes’ duties included reviewing BWC staff recommendations for potential investment consultants and money managers to assist the bureau in investing its financial reserves. As a member of the commission, he was required under R.C. 102.02(A) to file annual financial-disclosure statements with the Ohio Ethics Commission.

In July 2007, the Franklin County Prosecutor’s Office charged Forbes with four violations of R.C. 102.02(D), which prohibits any person from knowingly filing a false financial-disclosure statement, and two violations of R.C. 102.03(E), which prohibits any public official or employee from soliciting or accepting “anything of value ... that is of such a character as to manifest a substantial and improper influence upon the public official or employee with respect to that person’s duties.” On July 5, 2007, Forbes pleaded guilty to the four R.C. 102.02(D) charges and no contest to the two R.C. 102.03(E) charges, admitting that he had accepted gifts, meals, travel expenses and loans from parties that were providing or seeking to provide investment-related services to the BWC, and that he had not reported those items in his annual financial disclosure statements. He was convicted of all six misdemeanors.

The Office of Disciplinary Counsel subsequently pursued a professional misconduct complaint against Forbes, alleging that the conduct that resulted in his convictions also violated DR 1-102(A)(6), the state disciplinary rule the prohibits an attorney from engaging in conduct that reflects adversely on his fitness to practice. A three-member panel of the Board of Commissioners on Grievances & Discipline heard the case and found that Forbes had committed the charged misconduct. A majority of the panel recommended that Forbes receive a public reprimand; a dissenting panel member recommended a six-month license suspension. The board adopted the panel’s findings of misconduct and the majority’s recommended sanction.

In today’s per curiam decision, the Court accepted the board’s finding of misconduct, but wrote that Forbes’ convictions “warrant a more exacting sanction than the board recommended. To deter lawyers who work as public officials from violating R.C. 102.02(D) and 102.03(E) and to safeguard the public, we order a six-month suspension of respondent’s license to practice, with the suspension stayed on the condition that respondent refrain from further misconduct.”

The majority opinion was joined by Chief Justice Thomas J. Moyer and Justices Evelyn Lundberg Stratton, Maureen O’Connor, Judith Ann Lanzinger and Robert R. Cupp.

Justices Paul E. Pfeifer and Terrence O’Donnell dissented, stating that they would impose a public reprimand as the appropriate sanction for Forbes’ misconduct.

The court's decision is linked here.  The attorney stipulated that he had accepted (and failed to disclose as required by law) gifts, meals and travel expenses over a lenghty period of time. The attorney "has a long history as a prominent attorney and defender of civil rights in Cleveland" and the court concluded that there was "little chance that [he] will repeat the ethical mistakes committed in this case." The attorney was admitted to practice in 1962.

A Wikipedia entry about the lawyer is linked here.  (Mike Frisch)

June 11, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 10, 2009

Threats Against Judge No Basis For Recusal

In a decision issued prior to the U.S. Supreme Court's opinion in Caperton v. Massey Coal, the New Mexico Supreme Court held that a judge had not abused her discretion in denying the recusal motion of a defendant with three criminal case before the judge. One of the pending cases involves a capital crime. The basis for the recusal motion was a fourth criminal case in which the judge is the alleged victim of threats by the defendant. The court here concluded that there was insufficient evidence of resulting bias and no appearence of impropriety. (Mike Frisch)

June 10, 2009 | Permalink | Comments (0) | TrackBack (0)

Large Cushion Fails To Soften Fall

The Maryland Court of Appeals has disbarred an attorney for misconduct in his handling of advanced fees and the operation of his trust account. The attorney, who was admitted in 1975, had worked for a law firm prior to opening his own firm. He testified that he learned from the firm to keep a "large cushion" in the escrow account. Unfortunately, the cushion did not prevent overdrafts on his account. The hearing judge rejected the lawyer's contention that the defalcations were unintentional as a result of his professed lack of knowledge of trust obligations. The hearing judge also rejected proffered mitigation that the attorney had used speed to suppress his appetite in an ongoing battle to control his weight.

The court agreed that the misconduct was intentional and that mitigation had not been established. The court found that the conduct had involved dishonesty and merited the ultimate sanction. The court noted that the attorney had twice hired an accountant to reconcile the trust account and had discharged both prior to completion of the task. (Mike Frisch)

June 10, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Deferred Associates May Serve As Judicial Interns

The Massachusetts Committee on Judicial Ethics has issued an advisory opinion on the propriety of allowing law firm associates with a deferred start date and financial benefits to serve as unpaid judicial interns. The committee does not view the proposed hiring of interns as prohibited:

...the principal focus of this program is to serve the needs of the understaffed Trial Court and the people it serves, mitigating the effects of a severe shortage in law clerks that the Trial Court faces beginning in September 2009 as a result of the economic crisis and budget cuts. Any private benefit to the law firms involved is secondary to that benefit, and it is no different from the benefit to any law firm which has hired an associate in the ordinary course whose start-date follows the completion of a judicial clerkship...

          Second, your inquiry raises the issue of whether the volunteer interns are a "gift" or "favor" to the judges of the Trial Court from the law firms. Section 4D(5) prohibits a judge from accepting "a gift, bequest, favor, or loan from anyone except for" certain situations, none of which applies here. The Committee is of the opinion that, even if the volunteer interns are gifts or favors from the law firms to the judges of the Trial Court, they are permissible under the Code given the double blind structure of the proposed program. "The Code must be read as a whole. . . . [and] [t]he Canons and Sections are rules of reason. Some conduct that may literally violate a provision of the Code [i.e., Section 4D(5)(h) here] will be permissible because it does not violate the policy behind the prohibition or is de minimis." Preamble to the Code. As concluded for the reasons described in this opinion, a disinterested objective observer would not question the impartiality of the judges of the Trial Court when the law firms donating the volunteer interns appear before the judges. The program therefore would not violate the policy behind Section 4D(5)(h) and is permissible under the Code.

(Mike Frisch)

June 10, 2009 in Associates | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 9, 2009

From the AALS Mid-Year: The Academic-Practice Gap in the Basic Business Associations Course

Posted by Jeff Lipshaw

The AALS asked me to give the "junior faculty" perspective on a panel here in Long Beach assessing the state of the basic business associations course.  As I noted, it's a strange "junior-ness" as I'm going to be attending my 30th law school reunion in the fall.  Of those thirty years, twenty-six were as litigator and deal lawyer, in-house and outside lawyer, soldier, general, and diplomat, so I've seen a lot of different perspectives.  My co-author, Larry Ribstein, moderated, and  Usha Rodriques has done yeoman's duty in summarizing the rest of the panel; here's a snapshot of what I had to say (for what it's worth).

Two major differences between the way practicing lawyers and academic lawyers think about business association law have to do with how it's organized (as a practical matter) and how it's conceived (as a theoretical matter).

As to organization, business law isn't practiced by doctrinal area, but it tends classically to be taught that way.   Issues arise in context; clients rarely come in and say "I have an issue in agency that needs work."  It's teaching the context the doctrinal silos impact that is the real challenge. 

To give a sense of the cluelessness most students entering the basic BA course feel (as I did thirty-two years ago with my freshly-minted history degree), I asked the audience to consider the game of Flog, as to which substantial legal doctrine had developed.  The course is Flog Law.  Aspects of the game techniques as to which doctrine has developed include equipment and techniques or "moves" such as the long hurl, the short hurl, and the "roll."  All teaching is done by means of discussing what the other player's rights are if you wrongly perform the act to which the doctrine applies.  For example, if a player incorrectly performs the long hurl, he or she is penalized two dribbets.  The student is not taught explicitly, and must figure out on his or her own what it means to win the game of Flog.  The obvious conclusion from this method of teaching has to be that winners in Flog are those who catch the most mistakes made by the other player.  So you finish the Flog Law class, graduate, go out into the world and advise Flog players, who immediately get mad at you because it turns out Flog players have a completely different objective:  using the few strokes to get the ball in the hole (spell Flog backwards).

Compare this to teaching the litigation game.  I graduated in 1979 with civ pro, federal jurisdiction, evidence, and a clinical trial practice course, and I pretty much understood what I was going to be doing as a litigator for the next ten years.  You know what it means to succeed.  Teaching the business law game, it seems to me, means first giving students some idea of what it means to succeed.  We would accomplish that far better if we substituted for the stroll through doctrinal categories a functional approach:  how concerns about liability to third parties, management of the enterprise (rights and duties of owners and managers), finance and taxes, and ownership and transfer, all generally the domain of lawyers, fit into the business game.

As to the conception of business law and lawyering, I noted that the data of the world doesn't just organize itself; there is a relationship between the observer and the observed in which the observer brings something to the party.  The predominant approach within the academy is to be, as Ronald Gilson observed, entomologists studying the beetles, and Usha had it right:  entomologists telling the beetles how to BE beetles.  It means academic conceptions of the law and its role are retrospective, objective, litigious, and analytical, while the practice conceptions of transactional law are forward-looking, subjective, transactional, and strategic/tactical.  Moreover, what academic business law usually leaves out is the integration of doctrine, and the law itself, into the business (or Flog) game, which means dealing with (a) the exercise of good judgment, and (b) the limits of the law as means to the ends of the game.

Finally, I should note that I met face-to-face Charles Whitehead, the beetle-turned-entomologist to whom Ronald Gilson was actually referring!

June 9, 2009 in Teaching & Curriculum | Permalink | Comments (0) | TrackBack (0)

Fee Suit Dismissed

A trial court order denying dismissal of a law firm's suit for unpaid fees was reversed by the New York Appellate Division for the First Judicial Department. The firm had sued an individual defendant along with the entity client:

Accepting as true the facts pleaded by plaintiff and according plaintiff the benefit of every favorable inference to be drawn from those facts, plaintiff failed to state a cause of action for quantum meruit. To state such a cause of action, plaintiff must allege (1) the performance of services in good faith, (2) the acceptance of the services by the person to whom they are rendered, (3) an expectation of compensation therefor, and (4) the reasonable value of the services. Here, there are simply no allegations supporting the last three elements as the claim relates to Carucci. Notably, plaintiff offered no allegations that (1) Carucci accepted services from plaintiff, (2) plaintiff had a reasonable expectation of compensation from Carucci, or (3) the reasonable value of the services performed for which Carucci was responsible. Nor did plaintiff allege facts from which any of these elements reasonably can be inferred. With respect to the latter element, plaintiff alleged that Carucci and Seasons owe plaintiff $57,632.04; plaintiff did not differentiate the amounts allegedly owed by Carucci for the services plaintiff claims it performed for him, on the one hand, and the amounts owed by Seasons for the services plaintiff performed for it. Plaintiff's failure to differentiate the amounts owed by Carucci and Seasons is all the more telling because plaintiff does not claim that Carucci is liable for Season's legal fees; plaintiff alleges that Carucci is liable for legal fees for services plaintiff allegedly performed for him. For these reasons, that aspect of Carucci's motion seeking dismissal of the complaint under CPLR 3211(a)(7) should have been granted.

(Mike Frisch)

June 9, 2009 in Clients | Permalink | Comments (0) | TrackBack (0)

Stipulated Discipline

An interesting stipulated disposition from the District of Columbia has led to a recommended 60 day suspension, which will be sent to the Court of Appeals for final action. The lawyer agreed the he had misrepresented his status at Pillsbury Winthrop as "senior counsel" rather than associate and made false representations on behalf of a friend. He also had worked outside the firm and competed with firm clients in his personal real estate venture. The lawyer had no record of prior discipline and "is sincere in his regrets and has taken steps to remedy his violations and prevent recurrences."

The hearing committee report can be accessed through this link. Follow to the report in In re Stillwell. (Mike Frisch)

June 9, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Let The Sunshine In

Legal Ethics Forum reported yesterday that California Chief Trial Counsel Scott Drexel has been denied reappointment. I solicited the views of David Cameron Carr, who represents accused California lawyers and has previously commented on posts on this blog.

David's response:

Scott Drexel began his term as Chief Trial Counsel as prepared for success as anyone could have been.  A long career with the State Bar of California, including 16 years running the State Bar Court, combined with the good will of just about everyone who had worked with or around him throughout his long career.  That good will included the California discipline defense bar.


The precise reasons why the Board of Governors denied him reappointment we will never know.  From the defense bar point of view, things began to wrong in the wake the California Supreme Court’s decision in In Re Silverton.  Silverton, in part because of its peculiar facts involving misconduct by a reinstated attorney, and some critical language regarding the Office of Chief Trial Counsel’s charging policies in a footnote, was wrongly interpreted as a sweeping policy statement that the discipline system needed to “get tough” by rigidly enforcing California’s written disciplinary Standards.  In practice, the “get tough” directive resulted in what John Steele at Legal Ethics Forum aptly describes “as a loss of common sense and proportion among state bar prosecutors.”  The epitome was this the prosecution of attorney Van Smith for loaning his impecunious client some money for the rent without complying with Cal. Rule Prof. Conduct 3-300 (essentially the same as Model Rule 1.8(a).)  The State Bar Court issued an admonition, a non disciplinary sanction, to Smith for a technical violation of the rule, while admonishing the Office of Chief Trial Counsel that their pursuit of discipline “might be deemed punitive.”


This new prosecutorial attitude was mirrored by a series of proposed rule changes sponsored by the Chief Trial Counsel regarding permanent disbarment, reinstatement, the alternative discipline program for impaired attorneys and publication of unproven discipline charges on the internet.   Each of these proposals was sold in the name of public protection, and in the case of the permanent disbarment proposal, clearly oversold, as it was pared back after feedback from the California Supreme Court to address only the particular facts of Silverton. Discipline defense counsel perceived these developments as pushing the discipline system in the direction of a punitive system.  


Mechanically, the more aggressive policy meant fewer cases settling in State Bar Court and more cases being tried, with State Bar Court judges double and triple setting trials in an attempt to resolve cases within the court’s time guidelines.  At the same time, for reasons that are not completely clear, the investigation and prosecution processes of the Office of Chief Trial Counsel seemed to have slowed, resulting in a backlog of roughly a 1000 cases where OCTC is ready to pursue discipline charges.  At the same time, that the get tough” policy was being implemented, the State Bar of California was reaching a serious financial crises with projections for budget deficits in the near future.


Another aspect of the “get tough” policy was the increasing willingness of OCTC to pursue discipline charges against criminal prosecutors.  The relative lack of discipline prosecutions against criminal prosecutors had been noted for years. It has been the subject of debate; some scholars, such as Fred Zacarias at USD Law School here in San Diego, finding sound policy reasons for not devoting resources to discipline of criminal prosecutors. Renewed willingness to discipline criminal prosecutors seems part of a national trend.  Yet the Office of Chief Trial Counsel’s decision to pursue disciplinary charges regarding conduct many years old in some of the cases against criminal prosecutors, such a the Field case, has antagonized the criminal prosecutors.


Each of these factors probably played a part in the Board’s decision and collectively they were apparently enough to convince a majority that change was needed.

Of course, I have no personal knowledge of the California situation other than occasional thought (rare for me as a former bar prosecutor) that some dispositions seemed a tad harsh. I have personal knowledge of any number of instances when bar counsel were dismissed for diligence and competence. I hope that one byproduct of the publicity here is to let the sunshine in on the chief bar counsel selection/retention process. (Mike Frisch)

June 9, 2009 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)