Legal Profession Blog

Reconventional Demand

A lawyer withdrew from representing a client in litigation involving her ex-husband due to his personal relationship with the client (they are now married). The ex-husband filed a bar complaint against the lawyer. The lawyer retained an attorney (hereinafter "respondent") who filed  reconventional demand (a Louisiana term meaning a counterclaim) on behalf of the lawyer that sought damages based on the filing of the bar complaint. After those claims were dismissed in light of the absolute immunity provision for bar complaints, Respondent was charged with an ethical violation for asserting the claim.

The Louisiana Supreme Court found that discipline was appropriate but rejected the Disciplinary Board's proposed suspension of six months (with all but 30 days stayed) in favor of public reprimand. The court followed a recent precedent and concluded that a non-suspensory sanction was appropriate. (Mike Frisch)

Lawyer and Financial Crisis Lessons from the Sieur de Champlain

Posted by Jeff Lipshaw

My life partner now of thirty years, Alene, knows me too well.  She just finished David Hackett Fischer's (left) massive biography, Champlain's Dream, and walked into the office to show me Fischer's last couple of pages, and in particular this:

Champlain argued that a leader must be prévoyant, a word that has no exact equivalent in modern English. His idea of prévoyance was different from foresight in its common meaning. It is not a power to foresee the future. To the contrary, prevoyance was the ability to prepare for the unexpected in a world of danger and uncertainty. It was about learning to make sound judgments on the basis of imperfect knowledge. Mainly it is about taking a broad view in projects of large purpose, and about thinking for the long run.

What is really cool about this, for one thing, is the accessibility of the source materials.  I was curious about what Champlain actually said on the subject,  and Fischer's annotations take you back to the online resources of the Champlain Society in Toronto, where in a couple clicks, you arrive at the very page where Champlain used the word preuoyant in the original French.

There's more than a micro and a macro nugget of wisdom for lawyers and regulators here.  The micro has to do with a theme we talked about last week at the AALS Mid-Year Conference on the basic business associations course, and on which I previously blogged:

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.

Champlain seems to have had the same thing in mind for mariners: you have to be a master of the detail (pricking the charts, knowing longitude and latitude, selecting food, understanding the construction of the ship, etc., etc., etc.,) but "[b]esides what is said above, a good sea-captain ought not to forget anything necessary [to be done] in a sea-fight, in which he may often find himself engaged.  He should be brave, foreseeing [preuoyant], prudent, governed by good sound judgment, taking every advantage he can think of, whether for attack or defence, and if possible keep windward of his enemy." 

That exercise of judgment is a subtle trick, because Champlain makes it clear that the "wise and cautious mariner ought not to trust too fully to his own judgment" on important decisions, but to "take counsel with those whom he recognizes as the most sagacious, and particularly with old navigators . . . for it is not often that one head holds everything, and, as the saying goes, experience is better than knowledge."  At the same time, there is a place for individual mettle, for when there is real danger "you must display manly courage," use a "steady voice," and "dispel fear from the most cowardly bosoms."

The macro has to do with foresight or prévoyance itself, and how it applies to big crises like the present financial meltdown.  Not to press the point too repeatedly (well, okay, if I must), but as I have just argued in a newly posted piece on the epistemology of the financial crisis, and on which topic David Zaring has some sage comments, politicians and regulators, like generals, are usually fighting the last war. Sarbanes-Oxley, as well as the "money-loosening" that followed the bursting of the Internet bubble are examples.  Why it is so hard (despite the couple of lucky or prescient souls who saw it coming, but then again, I've hit long shots at the race track too) to regulate systemic risk looking forward rather than backward? The gist of the metaphor is that it's awfully hard to prescribe the medicine when you are still trying to figure out what the disease is!

No Fees For Representing Yourself

An attorney who had sued for inspection of public records and prevailed is not entitled to attorney fees for representing himself, according to a decision of the Oregon Court of Appeals:

The ordinary meaning of "attorney fee," then, is the price demanded by an attorney for services rendered to a separate client entity.  We find nothing in the text or context of ORS 192.490(3) to suggest a different meaning for that statute.  The parties do not supply a legislative history of the statute indicating that an unordinary meaning was intended. 

Our understanding of the ordinary meaning of "attorney fees" is reinforced by decisions from other jurisdictions interpreting similarly worded attorney fee provisions in public records disclosure laws.  For example, the District of Columbia's public records disclosure law provides that, "[i]f a person seeking the right to inspect or to receive a copy of a public record prevails in whole or in part in such suit, he or she may be awarded reasonable attorney fees and other costs of litigation."  DC Code § 1-1527(c) (1992 Repl).  In McReady v. Dept. of Consumer & Regulatory Affairs, 618 A2d 609, 612 (DC 1992), the court interpreted that statute and followed the federal rule that no fees could be awarded to a pro se litigant, citing the United States Supreme Court's holding in Kay v. Ehrler, 499 US 432, 111 S Ct 1435, 113 L Ed 2d 486 (1991) (precluding awards of fees in section 1983 cases to persons who appear pro se, whether or not they are attorneys). 

(Mike Frisch)

From Missouri To Kansas

An attorney who had failed to respond to a series of bar complaints was disbarred by default in Missouri. The Kansas Supreme Court imposed an indefinite suspension as reciprocal discipline. The court found that a default in Missouri was a proper basis to impose discipline in Kansas. The court further ordered that the attorney may not seek reinstatement in Kansas until he obtains reinstatement in Missouri. Thus, the discipline imposed seems to be functionally equivalent to disbarment. (Mike Frisch)

Not Even Close

The New York Appellate Division for the Second Judicial Department imposed a three-year suspension as reciprocal discipline based on findings of misconduct in California. The court affirmed a referee's conclusion that the lawyer had not "come close" to establishing an infirmity in the California bar case:

The respondent's testimony consisted of a series of arguments, while referencing various state court documents. His initial argument addressed the burden of proof. The respondent maintained that this Court had to apply a clear and convincing standard since that was the standard applied in the California proceedings. The respondent contended that the evidence failed to support the findings that he: (1) planned and arranged for a sham marriage to circumvent a court order, while simultaneously prosecuting an appeal to overturn the same order, and (2) sought to mislead or deceive any court by failing to inform the court of the marriage. He maintained that he had a nonfrivolous argument that the Weisses could consent to the marriage in their capacity as temporary guardians because they retained authority to consent by virtue of the stay granted, which was a blanket stay. The respondent maintained that he reasonably believed that the marriage did not moot the appeal. Hence, he contended that the evidence was insufficient to find that he intended to deceive the appellate court.

With regard to the imposition of discipline, the respondent argued that any discipline imposed should be made retroactive to the effective date of his California suspension, and that any decision imposing discipline should not contain any recitation of the facts because the order of the Supreme Court of the State of California did not contain any recitation, and the Opinion on Review of the State Bar Court was designated "Public Matter - Not Designated for Publication." The respondent acknowledged that the decision was available to any member of the public upon request. The Grievance Committee pointed out that the decision of the Hearing Department of the State Bar Court, which was the initial decision and included a complete recitation of the facts, is published on the internet.

The Special Referee concluded that the respondent did not "come close" to meeting his burden of proof on his infirmity of proof defense. The Special Referee found nothing that persuaded him that the respondent did not egregiously violate the basic ethical obligation of an attorney to uphold the integrity of the legal system, and that the respondent's concern for the welfare of a young girl "did not justify in any way conduct that involved circumventing a court order, ratifying a plan to arrange her marriage in a foreign country and withholding this clearly critical information from the court." The respondent's conduct in bringing the court's attention to "two new events," while omitting mention of the marriage, the Special Referee found was "clearly pure artifice."

The underlying case involved the lawyer's representation of a child's maternal grandparents in a custody dispute with the child's father after the mother had died. (Mike Frisch)

Judge's Campaign Speech Draws Sanction, Dissents

On motions for rehearing by a disciplined judge and its Commission on Judicial Performance, the Mississippi Supreme Court withdrew an earlier opinion and suspended the now-former judge from office for one year. The allegations involved a speech before constituents in which the judge "expressed his disdain for the local Causacian mayor and his African-American appointees" and said:

White folks don't praise you [African-Americans] unless you're a damn fool. Unless they think they can use you. If you have your own mind and know what you're doing, they don't want you around.

The court majority found the statements sanctionable in that the judge's "disparaging insults went well beyond the realm of protected campaign speech expressing views on disputed legal and political issues and discussing the qualifications of the judicial office for which [he] was campaigning." The court majority rejected charges of perjury as that allegation had not been formally brought in the commission's charges against the judge. The court majority  further held that it had the authority to order removal of a judge who was no longer in office, overruling prior contrary authority.

There is a dissent from Justice Kitchens that condemns the comment but would not impose discipline. The justice finds that the statements were protected by the First Amendment: "his comments addressed a political issue, and not just any political issue, but the seminal political issue of this State's history: race."

A concurring/dissenting opinion of Justice Dickinson states that the judge's "malevolent, racist words should be offensive to all rational, fair-minded people. As judicial officers, however, we are required to follow the law. With the utmost respect to the justices comprising the majority, I cannot conclude that this Court today is following the law." He would hold that the state is powerless to punish speech of a qualified judicial candidate in an election year on a disputed political issue. The statement at issue here is thus protected under his formulation.  (Mike Frisch)

The Sounds Of Suing

A dismissed legal malpractice suit was reinstated by the New York Appellate Division for the First Judicial Department. The court held that the law in the area was sufficiently settled to sustain the claims of the former client:

Plaintiffs allege that defendant, a law firm, incorrectly advised them concerning the early 20th century sound recordings they proposed to re-engineer, re-master and distribute as CDs. After the CDs had been manufactured and distributed, plaintiffs were sued and found liable for common-law copyright infringement.

The court dismissed the legal malpractice complaint, pursuant to CPLR 3211(a)(1), based on documentary evidence from which it concluded that the state of the law at the time the advice was given was unsettled and defendants therefore had not " failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession'" at that time.

We conclude, however, that the state of the law was not so unsettled at the time the advice was given as to bar as a matter of law plaintiffs' claim that a reasonably skilled attorney would have advised that the CDs were or might be entitled to common-law copyright protection and would not have advised that the release of the CDs would not result in any copyright liability. Although defendant maintains that it did advise plaintiffs of the possibility of common-law liability and did not advise plaintiffs that the release of the CDs would not result in any copyright liability, we must accept the facts alleged in the complaint as true and accord plaintiffs the benefit of every possible
favorable inference. The determination whether defendant exercised the requisite level of skill and care must await expert testimony.

The statute of limitations was tolled as to defendant because the attorneys who initially handled the matter continued to represent plaintiffs in the matter, albeit at different law firms, until 2005. (citations omitted)

(Mike Frisch)

Depression Does Not Explain Dishonesty

An attorney who had violated ethics rules as alleged in 28 counts was suspended for nine months by the Wisconsin Supreme Court. The suspension will be extended if the lawyer fails to submit an evaluation of  mental health issues. The attorney had claimed that the misconduct was a product of his depression, which the referee addressed as follows:

In his report, the referee acknowledged that there was no independent corroboration for Attorney Hansen's claim that he has suffered from depression since 1994.  Attorney Hansen did file a letter from a nurse that states that he has had a "major depressive disorder" for the past "several years." 

Moreover, the referee stated that he failed to "see how [Attorney Hansen]'s disorder can explain Attorney Hansen's attempts to deceive not only his clients but also the Court of Appeals and the Office of Lawyer Regulation.  Nor can I see how this disorder would prevent Attorney Hansen from returning fees which he agrees were unearned and which he promised to return." 

The referee then recommended a six-month suspension of Attorney Hansen's license describing his depression as "a partial mitigating factor." 

The court viewed the six-month suspension as insufficient. (Mike Frisch)

Thinking About the Financial Crisis - It's Scary When We Don't Know What We Don't Know

Posted by Jeff Lipshaw

At the end of April, I attended a fascinating day-long symposium organized by fellow blogger Dave Hoffman and two of his colleagues at Temple, Jonathan Lipson and Peter Huang, on issues of complexity arising in the current financial crisis. One of the questions that kept occurring to me was the context of the complexity issue - what exactly were we trying to fix, if anything?  My analogy was this:  if law is a "science," and something about the financial crisis (whether complexity or something else) reflects a disease, then what is the relationship between what we know about the disease and the regulatory medicine we would want to prescribe?  I liken financial boom-and-bust to bipolar disorder - is there a regulatory equivalent of lithium that we are assured will tamp down the peaks and valleys?  And even if there is, do we want to prescribe it?  Maybe we like the booms enough to bear the busts!  There's a good chance Tchaikovsky and Van Gogh were bipolar - would we have their art if they had been medicated?

Anyway, when I get to thinking, I usually get to writing (particularly when ensconsed in our Michigan house). This seemed like grist for the mill on one piece of a longer work on the difficulties in forward-looking judgment, namely, the difference between looking backward and assessing causation as a matter of attributing blame, and understanding what is going on as a descriptive matter sufficient to make a good forward-looking decision in real time under conditions of significant uncertainty.  The result is The Epistemology of the Financial Crisis:  Complexity, Causation, Law, and Judgment, which I've just posted on SSRN.  (I apologize for the use of the word "epistemology" but I like it.)  Here is the abstract:

The focus on complexity as a problem of the financial meltdown of 2008-09 suggests that crisis is in part epistemological: we now know enough about financial and economic systems to be threatened by their complexity, but not enough to relieve our fears and anxieties about them. What marks the current crisis is anxiety that the financial world has evolved to the point that there are hidden structures, like concentrated "too big to fail" institutions and mechanisms, or like credit default swaps, that have widespread and adverse downsides. I propose an analogy between medicine and law in the sense of "regulatory technology." If bubbles are the disease, then the analogy is to bipolar syndrome - exuberance, or even a little hypomania is okay on the upswing, but true mania is bad, as is the resulting swing to depression. Good regulation, then, would be something like lithium, which keeps us on an even keel. The question is really whether we understand the forces well enough to regulate them. Regulation is a function of prediction; prediction is a function of observed regularity; observed regularities invoke the problem of causation; causation raises the issue whether the process being analyzed is reducible. Complexity in itself relative; what seemed inordinately complex to ordinary people, much less deep thinkers, in 1787 or 1887 might not seem at all complex to us now. What we are dealing with instead is a crisis of confidence in those who purport to be experts in what we cannot fathom merely through common sense. The conundrum, of course, is that if it takes an expert to see the problem caused by complexity, how are we, possessing merely common sense, supposed to do anything but rely on their judgment? The epistemological crisis arises from our own judgments to rely on, believe in, trust, or have faith in, that judgment.

Flight To Bar Discipline

An Illinois hearing board has recommended discipline based on the following admitted facts:

On November 25, 2005, Respondent was on United Airlines flight number 1502 from Orlando, Florida to Washington D.C. At some point during the flight, Respondent engaged in disruptive behavior. He was arrested by federal air marshals, and the flight was diverted to Charlotte, North Carolina. On December 13, 2005, a one-count indictment was filed against Respondent in the federal district court of North Carolina, charging Respondent with assaulting and intimidating a flight attendant in violation of 49 U.S.C. sec. 46504. On January 26, 2006, Respondent plead guilty to assaulting and intimidating a flight attendant. On May 22, 2006, he was sentenced to seven months incarceration, followed by three years of supervised release. He was also ordered to pay $7,339 in restitution to United Airlines and a $100 assessment.

The board recommends that the lawyer, who is on interim suspension, be reinstated without further court order subject to a long list of probationary conditions if he complies with conditions enumerated as part of the proposed three year suspension:

We see no reason to simply require the suspension to remain in effect until further order of the court. Our recommendation gives Respondent the opportunity to address his problems, complete the necessary treatment, and prove that he is capable of returning to the practice of law. This sanction also protects the public as much as the sanction recommended by the Administrator. Respondent would still be suspended for three years. If he complies with the probationary terms, he will have demonstrated a substantial period of sobriety as well as the benefits of extended treatment. If he fails to comply with the terms of probation, he will have to serve a longer suspension that will remain in effect until further order of the court. This sanction essentially gives Respondent the opportunity to do what is necessary to become a reliable and productive member of society and the bar. If he squanders that opportunity, he will have a longer suspension and be required prove that he should be reinstated. To simply suspend Respondent until further order of the court gives him little incentive to continue the treatment he needs and provides no further protection to the public. Our recommended sanction accomplishes the goals of our disciplinary system and is closely tailored to the treatment recommended by [the bar's expert doctor].

Accordingly, we recommend that Respondent be suspended from the practice of law for five years and until further order of the court, with the last two years and the until further order of the court provision stayed by a period of probation subject to the following conditions to commence upon the effective date of the Court’s order and continue until the end of the probationary period...

A report from www.wayodd.com recounts the incident:

Pilots diverted a United Airlines flight traveling from Orlando, Florida to Washington, D.C., after a passenger lit a cigarette and urinated in the aisle.

He's been identified as Mark McGovern. A United Airlines spokeswoman says flight attendants noticed McGovern appeared drunk not long after the plane left Orlando.

She says McGovern later lit a cigarette and began to argue with a flight attendant who asked him to put it out. The spokeswoman says that, after the exchange, McGovern stood up and urinated in the plane's aisle.

The plane landed Friday night in Charlotte, North Carolina, after being diverted from its direct flight.

McGovern was taken into custody by federal authorities, Charlotte/Douglas International Airport director Jerry Orr says. Orr says it's infrequent that federal air marshals have to restrain and remove a passenger.

The 117 passengers on board were on the ground for only 23 minutes before the flight took off for Dulles Airport.

A customer service representative for United Airlines says the airline's drinking policy does not have a set maximum for ordering alcohol while in the air, but if a passenger does become unruly the pilot will land the plane.

(Mike Frisch)

Better To Be Negligent

The Maryland Court of Appeals affirmed a finding that a lawyer's misappropriation had been negligent rather than intentional and, as a result, imposed an indefinite suspension rather than disbarment. The court also affirmed findings of misconduct that stemmed from a loan made from the lawyer to his client, but found that the improper transaction was mitigated by the client's need for the funds.

In a second matter, the court disbarred an attorney who had a radio show on real estate law for several years. The lawyer had received a check payable only to the clients, endorsed their names without advising them of the receipt of the check and deposited the check in his operating account. The court found commingling and misappropriation among other violations. A dissent would impose suspension based on the lawyer's unblemished record since his 1976 admission and a supplemental finding that the trial judge "no longer observes what the court initially felt represented a cavalier attitude. This court is certainly no longer disheartened by the present actions of the [lawyer]."

As we have pointed out before, it is better for the lawyer to be found negligent than reckless or intentional in the mishandling of client funds, as negligence invariably draws a lesser sanction. (Mike Frisch)

Time Served

The Oklahoma Supreme Court determined that an attorney's conviction for failure to file tax returns warranted professional discipline. The court held that the time since the attorney's interim suspension for the comviction was the appropriate measure of discipline and, in effect, reinstasted the lawyer:

On its complete de novo consideration of the entire record, the court holds that [the attorney's] conviction demonstrates his unfitness to practice law...and warrants the imposition of discipline. Based upon the precedent adopted by this court in Livshee, the pendente lite suspension under which [he] stands has extended for a period long enough to constitute an adequate disciplinary measure for the misconduct of which he was convicted. That suspension, which began when this court issued its Order of Immediate Suspension on February 7, 2008, will be at an end when this pronouncement becomes effective and final. Our opinion herein shall be effective in the sense of allowing respondent's resumption of law practice when the costs of this proceeding in the sum of $1,000.98 have been paid and its remittance documented by the Bar's filing herein of its receipt.

Respondent is ordered disciplined by a suspension from the practice of law which will extend from the effective date of this court's post-conviction order of immediate pendente lite suspension to the effective date of this pronouncement and by imposition of costs.

(Mike Frisch)

Law Student Career Options Program

From the web page of the District of Columbia Bar:

On June 25 the program “Law Students, Know Thy Career Options!” will return to help aspiring attorneys determine their career paths.

The program is jointly sponsored by the Asian Pacific American Bar Association of the Greater Washington, D.C. Area (APABA-DC), the APABA Educational Fund (AEF), and the South Asian Bar Association of Washington, D.C., and will be hosted by Jones Day.

Panelists will explain the hiring process, work environment, and the strengths and merits of four career directions law graduates take after the bar exam: private practice, government, public defender’s office, and legislature. Breakout sessions will provide participants the opportunity to talk directly to the panelists and other attorneys about life after law school.

Speakers include Kris Dighe, assistant chief of the environmental crimes section at the U.S. Department of Justice; Janelle Hu of the U.S. House of Representatives Committee on House Administration; Emily Mao, a partner at Alston & Bird LLP; and Maribeth Raffinan, supervising attorney in the trial division of the Public Defender Service for the District of Columbia.

This free program takes place from 5:45 to 8 p.m. at Jones Day, 51 Louisiana Avenue NW. For more information, contact APABA-DC President-Elect Tacie Yoon at
president-elect@apaba-dc.org, or visit www.apaba-dc.org.

(Mike Frisch)

Permanent Disbarment Proposed For Former CFO

The Louisiana Attorney Disciplinary Board has recommended that an attorney convicted of theft be permanently disbarred. The attorney was the chief financial officer of Kiko Foods, Inc. and had direct access to and control of the corporate bank accounts and financial records, according to the formal charges. The thefts totalled almost $360,000. The attorney had been sentenced in the criminal case to a suspended term of five years hard labor and ordered to attend a gambling abuse program. A hearing committee had not proposed permanent disbarment in hope he might recover from his apparent gambling addiction and someday be reinstated. (Mike Frisch)

Second Disbarment May Be Permanent

The Louisiana Attorney Disciplinary Board has recommended the permanent disbarment of a lawyer who had been disbarred in 1986 and readmitted in 1999. In addition to findings of ethical violations in a number of client-related matters, the board found that the attorney had engaged in criminal conduct that adversely reflected on his fitness to practice. The findings related to the theft of shoes from Wal-mart. The attorney was arrested and pled no contest to the criminal charges. He attempted to recant his plea in the bar proceedings, contending that he had pled to conclude the matter quickly. The board did not buy the explanation. (Mike Frisch)

"I Am Not a Nice Guy"

A summary of a recent Massachusetts bar discipline case:

The respondent was suspended from the practice of law for a period of six months, with three months to serve and three months suspended for a two-year probationary period based on the conduct set forth in a two-count petition for discipline.

The first count involved the respondent’s threat to commit a crime against his wife’s former husband. The respondent’s wife and her former husband had a daughter who was college bound in the fall of 2006. The respondent’s wife and her former husband communicated with each other about their daughter and negotiated how to split the college expenses. On September 11, 2006, following an exchange between the respondent’s wife and her former husband over the college expenses, the respondent called the former husband and left a threatening message for him. In the message, the respondent threatened to “crucify” the former husband, made other threats of physical harm, and stated, “[y]ou have no idea what I’m going to do to you. I am not a nice guy”. On or about September 11, 2006, criminal charges based on these threats were filed against the respondent. On June 25, 2007, following a bench trial in district court, the respondent was convicted of threatening to commit a crime in violation of G. L. c. 275, § 2. The judge sentenced the respondent to a term of probation until December 18, 2007, and ordered him to have no contact with his wife’s former husband or be within twenty yards of him. Threatening to commit a crime is a misdemeanor, and the respondent’s conduct was in violation of Mass. R. Prof. C. 8.4(b) and (h).

The second count involved the respondent’s violation of a restraining order that the respondent’s brother had obtained following an incident between the two brothers. On March 6, 2007, while the respondent’s brother was recuperating at the respondent’s home following knee surgery, he and the respondent got into an argument. The respondent pushed his brother causing him to fall, dislodge his surgical staples, and start bleeding. The brother called 911, and he was transported to the hospital by ambulance. Upon release from the hospital, the brother did not return to the respondent’s home. He went to stay with his former wife and their daughter. On or about March 9, 2007, the brother pro se sought and obtained an abuse prevention order in district court. The order prohibited the respondent from having any contact with his brother or with his brother’s daughter. On March 18, 2007, the respondent called his brother at the home of the brother’s former wife and spoke to his brother’s daughter. The respondent told his niece that he was calling to speak to his brother, and the niece told the respondent that he could not speak to her father. The respondent knew that his brother was staying with his former wife and that it was a violation of the abuse prevention order to call either the brother or his daughter. On or about March 21, 2007, criminal charges based on a violation of the abuse prevention order were filed against the respondent. On August 27, 2007, the respondent admitted to sufficient facts in district court and to violating the abuse prevention order in violation of G. L. c. 209A, § 7. The judge continued the matter without a finding until August 26, 2008 and ordered the respondent to abide by conditions, including attendance at Alcoholics Anonymous (AA) meetings and submission to random testing. The respondent’s admission to sufficient facts constitutes a conviction within the meaning of S.J.C. Rule 4:01, § 12(1), and although violation of an abuse prevention order is a misdemeanor, it qualifies as a “serious crime” as defined by S.J.C. Rule 4:01, § 12(3). The respondent’s conduct was in violation of Mass. R. Prof. C. 3.4(c) and 8.4(b), (d), and (h).

The parties stipulated to the petition for discipline and to a recommended sanction. In mitigation, the respondent is an alcoholic and had been drinking heavily during the period in question. Since August 2007, the respondent has maintained his sobriety and has attended AA meetings.

On April 13, 2009, the Board of Bar Overseers voted to recommend to the Supreme Judicial Court that the respondent be suspended from the practice of law for a period of six months, with three months to serve and three months suspended for a two-year probationary period. During the probationary period the respondent agreed to undergo an evaluation by Lawyers Concerned for Lawyers (LCL), to authorize LCL to provide bar counsel with a copy of the evaluation prior to reinstatement under S.J.C. Rule 4:01, § 18(1)(a), and after reinstatement to be monitored by LCL and abide by any recommendations of LCL for a period of two years. The Court so ordered on May 5, 2009.

(Mike Frisch)

Admonition For Confidentiality Breach

A recent admonition reported on the web page of the Massachusetts Bar Counsel;

ADMONITION NO. 09-08

CLASSIFICATION:
Improper Disclosure of Confidences of Lawyer’s or Firm’s former Client [Mass. R. Prof. C. 1.9(c)(1)]

SUMMARY:
The respondent began working for an asset location and recovery company in 2005. Part of her responsibilities included researching court records to identify people who might be owed money. In February of 2007, the respondent gave notice to her client of her intent to leave its employment.

During the course of her work for her client, the respondent identified a number of individuals who were each owed money. After she left employment of her former client, the respondent began operating her own asset location and recovery company. Without the knowledge or permission of her former client, the respondent contacted some of the individuals she had previously identified and contracted with them to recover money. Several months later, the former client learned the respondent was competing with her. The respondent subsequently closed her company.

The respondent received an admonition for using confidential information of the former client to her advantage and to the disadvantage of the former client, in violation of Mass. R. Prof. C. 1.9(c)(1).

(Mike Frisch)

Claims Dismissed

The New York Appellate Division for the First Judicial Department affirmed an order dismissing a number of claims against lawyers and a law firm:

Plaintiff alleges fraud and fraudulent inducement against all defendants, breach of contract against the Weksler brothers, and legal malpractice, tortious interference and negligent misrepresentation against the firm. Plaintiff was married to Jack Weksler from 2004 until his demise in 2007. She claimed it was the decedent's intention to provide for her by establishing an annuity whereby Joseph and Bruce, his sons from a previous marriage, would pay plaintiff $4,000 per month after his death as long as neither he nor plaintiff had commenced divorce proceedings against the other. The law firm, at the decedent's behest, prepared an agreement memorializing his wishes. Plaintiff and the decedent were allegedly happy with and relied on the agreement, which would guarantee her future financial security. The decedent became seriously ill in January 2007. Four months later, after his discharge from the hospital, he retained the law firm to commence a divorce proceeding. The complaint was filed in New Jersey Superior Court in June 2007, and he died the following month.

Plaintiff alleges that defendants made material misrepresentations upon which she relied, which reasonably led her to believe that the agreement would be binding and valid and pay her $4,000 per month after Jack's death. Accepting the facts alleged in the complaint as true, and according plaintiff the benefit of every possible favorable inference, she fails to allege sufficiently the elements of fraud and fraudulent inducement and plead with the necessary specificity the alleged misrepresentations made by defendants.

Furthermore, plaintiff fails to state a cause of action for breach of contract against the Weksler brothers. Even assuming the agreement was enforceable, it still memorialized the intent of the parties to extinguish any payment to plaintiff upon the filing of divorce papers.

As to the claim for legal malpractice, there was never an attorney-client relationship between plaintiff and the firm. Even assuming plaintiff had been the firm's client, she failed to show how such alleged malpractice caused her injury, as the agreement simply effectuated the intent of the parties, i.e., to provide plaintiff with an annuity during her lifetime subject to the stated terms and conditions.

Plaintiff's remaining causes of action against the firm, for negligent misrepresention and tortious interference, are dismissed as redundant of the legal malpractice claim. (citations omitted)

(Mike Frisch)

"Each Case Is Unique"

The Illinois Supreme Court imposed a two-year suspension of an attorney on review of the Review Board's proposed six-month suspension. The attorney had engaged in a number of violations included neglect of an estate for 17 years. The court rejected the Administrator's exception to the board's failure to find dishonesty in the lawyer's review of a judge's tax returns while appearing before the judge and his failure to so advise opposing attorneys:

... in a case where the respondent was initially charged with violating Rule 8.4(a)(4), and a violation was not found, this court came to that conclusion after determining there was no evidence the misconduct in that case was intentional. See In re Witt, 145 Ill. 2d 380 (1991) (where the court found that there was no violation of Rule 8.4(a)(4), because it was not persuaded that the respondent's silence was intended to perpetrate a fraud).

Thus, we cannot say that the Hearing Board's finding that Cutright did not violate Rule 8.4(a)(4) is against the manifest weight of the evidence. Cutright acknowledges that he should have made certain disclosures to opposing counsel on those cases in which he appeared before Judge Cochonour. However, there is no evidence that Cutright ever received any money or favorable treatment in exchange for his preparation of Judge Cochonour's tax returns. Nor did he make any false statements or misrepresentations regarding his preparation of the tax returns. Cutright's initial decision to review the tax forms was based on his belief that he was reviewing the returns in conjunction with his work on the estate of Clark Cochonour.

There is essentially no way to define every act or form of conduct that would be considered a violation of Rule 8.4(a)(4). Each case is unique and the circumstances surrounding the respondent's conduct must be taken into consideration. That being said, based on the circumstances in this case, we decline to reverse the findings of the Hearing Board and the Review Board to conclude that Cutright violated Rule 8.4 (a)(4).

The court weighed the aggravating and mitigating evidence in accepting the argument that the six-month suspension was insufficient:

In mitigation, Cutright had no disciplinary record prior to the complaint filed in this case. Cutright testified as to his previous community involvement and his pro bono work with the Land of Lincoln Legal Assistance Foundation. He also presented six character witnesses at his hearing: three judges, two lawyers and a member of his community, all of whom testified that Cutright had a good reputation for honesty and integrity in the legal community. He also completed a professionalism seminar at the Illinois Professional Responsibility Institute and cooperated in the disciplinary proceeding.

However, in aggravation, we recognize that Cutright's misconduct was ongoing and arose out of three separate acts involving multiple clients. Cutright also did not appear to realize the wrongfulness of his actions. In regard to the Hayden estate, Cutright believed that he was merely doing what his client asked him to do. In the Carpenter estate, although there was no activity in the case for several years, Cutright believed that he was doing what was best for the estate. Additionally, Cutright's misconduct caused financial harm to the estates of both Hayden and Carpenter.

(Mike Frisch)

Fee Simple

From the web page of the North Carolina State Bar:

The Grievance Committee reprimanded [a] Lexington lawyer...for filing a civil action against a former client before the Bar's fee dispute resolution process was completed, charging excessive fees, and charging for time spent obtaining the court's permission to withdraw from the client's case.

(Mike Frisch)