June 26, 2009
No Right To Rummage
The New Jersey Appellate Court has issued a decision concerning an employee's rights with respect to emails sent to her attorney on a computer provided by the employer:
...we address whether workplace regulations converted an employee's emails with her attorney-- sent through the employee's personal, password-protected, web based email account, but via her employer's computer--into the employer's property. Finding that the policies undergirding the attorney-client privilege substantially outweigh the employer's interest....we reject the employer's claimed right to rummage through and retain the employee's emails to her attorney.
The employee had been the employer's executive director of nursing and had filed claims of discrimination against her former employer. Counsel for the employer was able to obtain the emails by extracting and creating a forensic image of the computer hard drive. The emails were discovered while reviewing the employee's Internet browsing history. Counsel then used some of the emails in its papers and fought disclosure of the material to plaintiff.
The court discusses the ethical obligations imposed by DR 4.4(b), which obligates counsel to cease reading known privileged documents, notify and return the documents to the adverse attorney. Rather, here:
[the law firm] appointed itself the sole judge of the issue and made use of attorney-client emails without giving plaintiff an opportunity to advocate a contrary position.
The court remanded the matter for a determination whether the employer's attorneys should be disqualified as a result of reviewing the emails and directed the employer to provide all recovered emails to the employee. There is also an extended discussion of the impact of company computer policies on the issues presented. (Mike Frisch)
Advertising Issue, Other Misconduct, Draws Suspension
The Wisconsin Supreme Court ordered a six-month suspension of an attorney for ethical violations in a number of matters. One case involved the attorney's submission of an expert's bill for payment by the State. The State paid the bill but the attorney used the proceeds for her own purposes.
Another involved the following findings:
R.B. arrested Attorney...on September 7, 2004. Attorney...was initially charged with disorderly conduct and resisting arrest. The police report indicated Attorney...recorded a preliminary breath test with a blood alcohol concentration of .117%. After her arrest, Attorney ...paid for the following advertisement in a local newspaper:
In Pursuit of Justice:
Stop Police Misconduct
Former Officer R.B. of the
MTPD has pepper-
sprayed minor females
until rendered helpless and
then committed a sexual
assault against them. To
pursue a civil rights
action, send statement to [address]
Attorney...did not list her name in the advertisement but used her post office box and telephone number.
The attorney has been previously reprimanded on two occasions and was suspended for five months last August for unrelated misconduct. The six-month suspension will remain in effect until the attorney pays costs and restitution. (Mike Frisch)
Federal Law Preempts Unauthorized Practice Rules
The Ponca Tribe of Nebraska ("Tribe") filed a motion to intervene in an appeal of a child custody matter involving two children who are members of the Tribe. The lower court had denied the motion because it was not signed by a member of the Nebraska Bar. The Nebraska Supreme Court reversed, holding that the Tribe's right to intervene in the proceeding was granted by federal law (the Indian Child Welfare Act or "ICWA"). The lower court had refused to allow the Tribe's representative to participate notwithstanding the lack of objection from any party to the proceedings.
The court here holds that federal provisions preempt Nebraska's rules governing the unauthorized practice of law. The court notes that the non-lawyer representative designated by the Tribe was experienced in matters governed by the ICWA.
The court should be commended for not allowing unauthorized practice rules to silence the voice of a qualified non-lawyer representative. (Mike Frisch)
An attorney was suspended for five years by the New York Appellate Division for the Second Judicial Department for a number of ethical violations. He had, among other things, jointly represented a husband and wife in drafting a separation agreement and thereafter acted as the husband's lawyer in the ensuing divorce. There were also neglect and escrow violations. The court sets out its sanction analysis:
In determining an appropriate measure of discipline to impose, the Grievance Committee points out that the respondent's disciplinary history consists of three Letters of Caution, one dated April 22, 2004, and two dated March 15, 2004. Those matters involved neglect, failure to forward settlement funds to the complainant, and failure to maintain an escrow account in good order and to make the bank accountable for its errors and inconsistencies. The respondent failed to take the opportunity to request a hearing with respect to those letters and should not now be permitted to recast them in a way he would like them to be viewed.
By way of mitigation, the respondent submits that he was merely trying to help out Mr. and Mrs. Freedman, who had little or no liquid assets and who sought his help in terminating their marriage and resolving related issues. He asks the Court to view the Comis matter as a reflection of the inexperience of himself and his staff in maintaining records and tracking the status of a case. He asks the Court to also consider the nature of a small, one-attorney practice and his cooperation with the Grievance Committee.
While the respondent may not have converted Mr. and Mrs. Freedman's funds for his own benefit, he did convert their funds held in his escrow account by turning them over to Mr. Adler, another client. While law office failure may have played a role in the initial handling of the Comis matter, the respondent should not be permitted to rely on that excuse for providing a false document to the Grievance Committee.
The District of Columbia Court of Appeals entered an order yesterday that denied a motion for rehearing or rehearing en banc in a case where the court had not imposed an interim suspension for a felony conviction. Bar Counsel had filed the motion after a three-judge division of the court had declined to order suspension and instead referred the matter to Bar Counsel for an investigation of the underlying facts and circumstances. Note that the court adds a footnote to its earlier decision that clarifies the procedure in circumstances where the attorney has filed an opposition to the proposed interim suspension order submitted by Bar Counsel. (Mike Frisch)
June 25, 2009
"An Isolated Series Of Bad Choices"
An Arizona attorney who had been convicted of extreme DUI, leaving an accident scene and endangerment as a result of an accident with a motorcyclist was the subject of a bar discipline proceeding. A hearing officer's proposed dismissal of the charges was not accepted and remanded by the Disciplinary Commission based on the hearing officer's failure to accord conclusive weight to the underlying conviction. A new hearing officer has found misconduct, although the crimes were an "isolated series of extremely bad choices" and recommended a public censure and one year of probation. (Mike Frisch)
No Ordinary Employee
The Delaware Supreme Court imposed a public reprimand of an attorney for problems with the operation of his escrow account. The problems were discovered in the course of a random audit of the account by the bar. It was thus learned that the attorney's employee (his adult daughter) had embezzled approximately $162,000 from the account. The Board on Professional Responsibility's report in the matter noted that the attorney had no information that would have put him on notice of the daughter's dishonesty and that he had "less reason to doubt her honesty than the honesty of an ordinary employee..." The lawyer had mortgaged his home to pay off the affected persons and put his escrow account in compliance with requirements. (Mike Frisch)
When Is Judicial Delay Sanctionable?
A very interesting decision of the New York Commission on Judicial Conduct addresses the question of when delay in issuing decisions by a judicial officer constitutes a basis for discipline. The judge had transitioned from part-time with a law practice to a full-time position. It was charged that he had "[f]ailed to render decisions in a timely manner in 47 cases notwithstanding that he had previously been issued a letter of dismissal and caution for delayed decisions." The judge had defended that a lack of resources had caused the delays, which contravened mandated time requiorements.
There are thoughtful concurring and dissenting opinions on the question of whether any or lesser discipline should be imposed. From the concurrence:
The debate between the dissent and the Commission's determination focuses on the niceties of the almost 20 year-old Greenfield decision and engages in an exhaustive comparison between the facts underlying Judge Gilpatric's misconduct and Justice Greenfield's excused neglect. Both analyses miss the forest for the trees. The issue posed by this case is whether the Court of Appeals will adhere to its Greenfield proclamation that even longer delays of sub judice decsions, absent defiance of administrative directives or nondisclosure of pending delayed cases, are NOT judicial misconduct. It seems clear that Greenfield's holding is too broad and not in the service of the canon of judicial ethics that requires every judge to "dispose of all judicial matters promptly, efficiently and fairly."
Upping The Ante Part Two
The Ohio Supreme Court rejected discipline proposed by its Board of Commissioners on Grievances and Dispcipline and indefinitely suspended an attorney for neglect of several matters and failure to respond to a bar investigation. The attorney, who also is admitted in Kentucky, had been recently subject to reciprocal suspensions in Ohio based on discipline imposed in Kentucky.
The court concluded that a two-year suspension with the second year stayed was unduly lenient: "As relator argues, we have consistently imposed an indefinite suspension from practice for lawyers who repeatedly neglect their clients' legal interests and fail to cooperate in the ensuing disciplinary investigation. We have noted our extensive case law in this area. And in view of [his] prior disciplinary record and the lack of any mitigating factors to weigh in his favor, an indefinite suspension is appropriate." (Mike Frisch)
A Friend In Need
The New York Commission on Judicial Discipline closed a matter as a result of the resignation of a town court justice. The justice is barred from future judicial service.
The non-lawyer justice had stipulated that he presided over a small claims action involving a close friend and neighbor who was seeking unpaid rent on a trailer. The trailer was in another county, a fact that the justice could observe from his own home. Notwithstanding the jurisdictional problem, the justice gave a default judgment to his friend. The opposing party (Ms. Bump) did not appear. The justice told his friend "to do whatever he wanted with regard to Ms. Bump's trailer." He then mailed an adverse judgment to Ms. Bump directing her to remove the trailer or its ownership would transfer to his friend, knowing he lacked the authority to dispose of the trailer or grant other equitable relif in a small claims action." (Mike Frisch)
Upping The Ante
The District of Columbia Court of Appeals imposed the substantially different discipline of a 30 day suspension in a reciprocal matter from Virginia. The attorney had made false statements in a certificate of service and in open court and misleading representations to Bar Counsel. The Virginia State Bar Disciplinary Board had imposed an admonitions with terms.
The court concluded that Bar Counsel here met its burden to establish by clear and convincing evidence that a more severe sanction was appropriate: "Our case law is replete with instances in which we have suspended attorneys who have engaged in acts of dishonesty, and there should be no doubt that a suspension from the practice of law is substantially different from an admonition. We recognize that [the attorney] has no prior disciplinary history, but his conduct involved serious acts of dishonesty for which a thirty-day suspension is appropriate." (Mike Frisch)
June 24, 2009
No Clients, No Conflicts
The West Virginia Supreme Court of Appeals affirmed the recommendation of a hearing panel subcommittee (HPS) of the Lawyer Disciplinary Board to dismiss disciplinary charges that arose from a tragic car accident. Jonathan McRobie was charged with criminal offenses as a result the accident, in which fourteen-year-old Jodi Reed (his passenger) had been killed. Ms. Reed was on a wireless phone speaking to her mother at the time of the accident. The mother heard the aftermath (Josie did not die at the scene) and her recollections were relevant to the police investigation.
Two days after the accident, the accused attorney met with McRobie's father concerning the possibility of retaining him. By coincidence, Reed's father appeared at his office seeking legal assistance while he was meeting with McRobie's father. Reed's father was advised of this and stated that "he did not want to meet with the [attorney] he he was going to represent McRobie." However, the attorney reached out to meet with Reed's father for about an hour later that afternoon. Reed's parents gave the lawyer factual information and the lawyer contacted an insurance adjuster on their behalf. Thereafter, the lawyer and Reed's parents disagreed as to whether he was their lawyer. The lawyer advised the Reeds that he had decided to represent McRobie in the criminal case. The Reeds filed a bar complaint.
The court describes the substance of the meeting between the accused lawyer and the Reeds:
The court identified the issues raised by the bar charges:
This case illustrates the difficulties that may arise when two potential clients seek to engage the same attorney. At the outset we note that both the Petitioner and Respondent agree that if this Court were to adopt proposed Rule 1.18 (Duties to Prospective Client), potential situations such as the one raised in this instant case would be less conflicted. As succinctly noted in Respondent's brief in support of dismissing the Statement of Charges, the American Bar Association noted in its comments that there are legitimate reasons for making distinctions between a potential client and an actual client:
Prospective clients, like clients, may disclose information to a lawyer, place documents or other property in the lawyer's custody, or rely on the lawyer's advice. A lawyer's discussions with a prospective client usually are limited in time and depth and leave the prospective client and the lawyer free (and sometimes required) to proceed no further. Hence, prospective clients should receive some but not all of the protection afforded clients.
Inasmuch as this rule has not been adopted by this Court and was not applicable at the relevant times herein, we address the allegations against Mr. James in light of the existing rules and regulations that were applicable. The ODC urges us to conclude that the Respondent's actions violated both Rule 1.7 and Rule 1.9 of the Rules of Professional Conduct. We address each separately.
The court found that the concurrent client rule applies only when there are two actual clients. The hearing panel correctly found that the Reeds did not have an attorney-client relationship with the accused lawyer. Further, absent an attorney-client relationship and the exchange of confidential information, the court found that the former client rules were inapplicable. Thus:
Careful review of the testimony adduced at the hearing supports the HPS's conclusions that the Reeds did not provide Respondent with information that could have been used in the defense of McRobie to the disadvantage of the Reeds. The affidavit from the prosecuting attorney establishes that he agreed with the Respondent to not call Mrs. Reed as a witness. The Respondent himself testified that any information he learned from the Reeds regarding the accident was available through other means. Most significantly, the Reeds themselves were unable to identify any confidential information disclosed to Respondent. Rule 1.9(b) therefore does not apply to this situation.
The burden was on the ODC to prove that the Reeds provided Respondent with confidential information not otherwise generally available. The HPS correctly found that the ODC did not meet this burden of proof.
I find this result somewhat disturbing. If there was no attorney-client relationship between the accused attorney and the Reeds, then there is a strong argument that his dealings with them violated Rule 4.3. A lawyer is not implying "disinterest" when making calls to an insurance adjuster on behalf of the supposed non-client.
The court notes that the Reeds were unable to identify "specific factual information... that would not have been otherwise available to any attorney representing McRobie." I think that is an unfair burden to place on the Reeds and irrelevant to the question whether they reasonably perceived that the accused was their lawyer. Mrs. Reed "testified that she felt she was speaking to Respondent] as her attorney during [the] meeting." I find that perception quite reasonable under the circumstances. (Mike Frisch)
"Without Credible Supporting Evidence"
From the web page of the Ohio Supreme Court:
The Supreme Court of Ohio has indefinitely suspended the law license of Cleveland attorney Merrie Maurine Frost for multiple disciplinary infractions arising from her filing of false and unsupported accusations of bias and corruption against the Cuyahoga County prosecutor’s office, three local judges and a federal district court judge, and filing of a baseless defamation suit against two attorneys who were her opposing counsel in a sex-discrimination case.
The Court affirmed findings by the Board of Commissioners on Grievances & Discipline that Frost’s actions violated, among others, the state disciplinary rules that require attorneys to maintain a respectful attitude toward the courts and prohibit knowingly making false accusations against a judge; knowingly advancing a claim that is unwarranted under existing law; taking action in a legal matter that would serve merely to harass or maliciously injure another; engaging in conduct prejudicial to the administration of justice; and engaging in conduct involving fraud, deceit, dishonesty or misrepresentation.
In adopting the disciplinary board’s recommended sanction of an indefinite license suspension, the Court noted that while attorneys have a constitutionally protected right of free speech, they also have an ethical duty to avoid using legal proceedings as a platform from which to publicly impugn the honesty and integrity of judges and other attorneys without credible supporting evidence as a basis for those claims. In setting conditions for possible reinstatement of Frost’s license after June 24, 2011, the Court ordered that any petition for reinstatement must include a physician’s statement that she is mentally fit to return to the competent, professional and ethical practice of law.
The court rejected claims that the conduct involved protected speech and concluded that the attorney made baseless charges. Further, "[the attorney] seems unable to understand fundamental evidentiary and procedural rules, a problem manifested by her disjointed efforts to present her case before the hearing panel."
The court's opinion is linked here. Linked here is a Sixth Circuit decision in another matter handled by the attorney where the court notes that the lawyer "graciously conceded during oral argument that, if there is anyone to blame for the [frivolous] litigation, she should be the one and not her client. " (Mike Frisch)
Client Is Trustee
The Oklahoma Supreme Court reversed a holding of the Court of Civil Appeals and held that a law firm had a lien on a counsel-fee award entered by the trial court to the former client in a divorce case. After the fee award, the firm had withdrawn over a fee dispute and given notice of its attorney's lien to the court. The client declared bankruptcy and listed the law firm obligation as an unsecured debt.
The client later sought to enforce the award of fees against her former spouse. The firm moved to enforce a charging lien before the client received any money. The client appealed the trial court finding that she had abandoned any claim to the fee award by filing for bankruptcy. The court here concluded that the law firm gets the fees:
When an award for an attorney's fee is made directly to the client who is a party, a constructive trust attaches eo instante by operation of law to the award for the benefit of the lawyer who performed the services for which compensation is allowed. The legal entitlement to the award goes to the client, but the beneficial interest is created in favor of the lawyer. The client stands as a constructive trustee and the lawyer as a constructive beneficiary (cestui que trust). It is the dual title - the splitting of title into legal and equitable components - that creates the constructive trust. If money for satisfaction of the counsel-fee award comes into the hands of a constructive trustee it stands impressed eo instante in trustee's hands with the earmarks of the trust res.
The application of constructive-trust law to a counsel-fee award operates to protect the ethical restraints upon legal practitioners. These restraints prohibit a lawyer from sharing fees with nonlawyers and disallows a nonlawyer's attempt to lay claim to an attorney's fee.
The constructive trust arises here from the wording of the counsel-fee award and the attorney-client relationship. When the wife was awarded an attorney's fee, she then stood as a constructive trustee of the award for the benefit of the Law Firm by operation of law. An ethical conflict would have arisen in violation of law if she were declared the sole beneficiary of that award. This is so because such declaration would constitute a legally impermissible award of an attorney's fee to a nonlawyer. In short, the imposition of a constructive trust in favor of the service-rendering lawyer assures the award's conformity to applicable law.
June 23, 2009
Reinstatement Proposed For Attorney Disbarred For Child Enticement
An Illinois hearing board has recommended the reinstatement of an attorney who was disbarred in 2003. The basis of the disbarment was a conviction in Wisconsin for a single count of child enticement. He had been engaged in an internet chat with a person he thought was a 13 year old girl. He then went to Milwaukee for oral sex and was arrested.
Prior to his disbarment, he had worked for a non-lawyer capacity for a bank. He had lost his job after 25 years in the wake of a change in management. He secured a position with another bank and the issue of his candor in the securing of that employment was raised in this proceeding.
Overall, the board was satisfied that reinstatement was in the public interest:
Petitioner’s conduct since he was disbarred favors reinstatement. It is undisputed that Petitioner had effectively addressed the psychological issues that lead to his conviction. Immediately after being arrested, Petitioner obtained psychological treatment. He sought treatment from Dr. Goldberg, an accomplished and well-respected psychiatrist. Petitioner saw Dr. Goldberg twice per week from March 1, 2000, to December 30, 2002, for a total of 175 to 200 visits. Additionally, between mid-2001 and late 2002, Petitioner and his wife saw a marriage counselor. Also, from March 2001 to December 2002, he received sex offender treatment, as required in the criminal sentence.
As a result of these therapies, Petitioner has effectively treated the causes of his misconduct, and restored the relationships in his life. Dr. Goldberg concluded that when Petitioner engaged in the misconduct, he was suffering from reactive clinical depression caused by an extended period of family and work related problems. Petitioner’s criminal conduct was a result of that depression. After treating Petitioner, Dr. Goldberg concluded that Petitioner no longer suffered from depression and had an excellent prognosis. He also found that Petitioner currently has constructive ways to deal with life’s problems and subsequent depression episodes are unlikely.
Even the Administrator’s expert, Dr. Henry, concluded that Petitioner does not currently suffer active symptoms of major psychiatric illness and is a minimal risk of repeating his criminal conduct. Dr. Henry also testified that after completing therapy with Dr. Goldberg and gaining other insights into his conduct, Petitioner is well equipped to avoid a recurrence.
We were also impressed with [his wife's] testimony. She has observed substantial changes in Petitioner since his conviction. He worked diligently with Dr. Goldberg and their marriage counselor to addresses the problems that lead to his conviction. His relationship with her and their children has dramatically improved.
Petitioner has been a productive member of society since his disbarment. He has been gainfully employed at the Bank of Waukegan since January 2001, in a position of significant responsibility. He oversees the management of trust, estate and retirement accounts and the bank’s investments. He also is responsible for the bank’s business development and coordinates outside audits. One of his business associates, Mr. Brennan, convincingly testified that Petitioner is knowledgeable and concerned with the best interests of the Bank’s clients.
Additionally, Petitioner is active in his synagogue. He is on the funeral committee, which assists members of the congregation plan and organize funerals. It requires a substantial time and emotional commitment. Petitioner has also served on the synagogue’s board of directors and executive committee. Further, Petitioner oftentimes leads the services when Rabbi Taylor is unavailable. Petitioner also makes charitable contributions. Specifically, he donates tickets to White Sox games to various organizations, and started and maintains a scholarship fund at Highland Park High School to send students to music summer camp and pay for music lessons.
The Administrator argues that some of Petitioner’s activities should not be viewed favorably, because he engaged in the same activities before and after his conviction. We reject this argument, and will not penalize Petitioner for continuing to do the same good deeds after he engaged in misconduct as he did before the misconduct. Petitioner could have stopped participating in those activities after his conviction, but he continued to do them.
Moreover, we are convinced that Petitioner is currently knowledgeable of the law. Petitioner has taken seminars offered by the Illinois Institute for Continuing Legal Education, the Lake County Bar Association, and the Lake County Estate Planning Counsel. He has also attended a two day wealth management course at Notre Dame University. He reads numerous publications related to wealth management, trust law and estate planning. He is a member of the Illinois Bar Association, and receives publication from that organization.
The Administrator argues that Petitioner’s conduct since disbarment is diminished by the fact that he was dishonest about his conviction with his current employer. The undisputed facts establish that Petitioner did not fully disclose his crime to Bank of Waukegan. In January 2001, when completing the job application, he failed to answer the question regarding whether he had been convicted of a felony. He generally told bank officials that he was convicted of a crime, but did not explain any further. In February 2001, after he was given the job, he learned that the Bank needed the consent of state bank regulators when employing a convicted felon. He drafted a memo explaining the conviction, but made inaccurate statements in the memo. In March 2001, Petitioner drafted a second memo and again made several inaccurate statements. Petitioner admitted he made the misrepresentations in an effort to keep his job.
We do not condone Petitioner’s lack of candor in the memos, and view them as a serious lapse of judgment. However, the seriousness of Petitioner’s conduct is mitigated by the fact that after thoroughly investigating Petitioner criminal conviction, not only did the state bank regulators also approve of Petitioner’s continued employment, but the Bank continued to employ Petitioner. He should have been more candid about his conviction; however, when this fact is considered with all the other facts, it is insufficient to deny reinstatement.
I would not be surprised if this proposed result was appealed to the Review Board by the Administrator. (Mike Frisch)
Post-Caperton Judicial Education
From the web page of the Ohio Supreme Court:
An Indiana University law school professor will offer his perspectives on judicial disqualification and recusal issues – including a recently decided U.S. Supreme Court recusal case – at the closing session this week of the annual common pleas court judges summer meeting.
Professor Charles Geyh will lead a discussion on judicial ethics and speech on Friday. Part of his remarks will center on the Caperton v. A.T. Massey Coal Co. case out of West Virginia.
The U.S. Supreme Court ruled June 8 that elected judges should disqualify themselves from ruling in cases involving people who have contributed huge sums of money to support a judge’s election or re-election campaign. In the 5-4 decision, the justices concluded that a West Virginia Supreme Court of Appeals justice should not have taken part in a dispute between two coal companies because the owner of one of the firms had spent $3 million to help elect the justice.
In remarks to the media before the case was argued, Geyh said the case has “wide-ranging implications for the future of judicial elections, judicial impartiality and public confidence in the courts. With judicial elections becoming ever more contentious and expensive affairs, and with nearly 90 percent of the public thinking that a judge is influenced by their campaign contributions, much hangs in the balance.”
The Ohio Common Pleas Judges Association three-day educational program also features sessions on Rules of Evidence and case law, a civil law update, an Ohio Judicial Conference update, House Bill 130 and other felony sentencing bills, an Ohio courts update, and what works in reducing recidivism.
The Dangers Of Mediation
A mediation conducted by a mediator employed by the Federal Mediation and Conciliation Service at the Hampton Inn in Beckley, West Virginia was abruptly interrupted when a 33 pound light fixture fell on the mediator's head, causing serious injuries. The mediator thereafter sued for his injuries. A majority of the West Virginia Supreme Court of Appeals affirmed the grant of summary judgment on behalf of the defendant, Equity Inns.
A dissent would conclude that the summary judgment was improperly granted:
In the situation at hand, on the day in question, Mr. Crum [the mediator] entered the conference room of the hotel to conduct mediation in a civil lawsuit. Then, through no fault of his own, a thirty-three pound light fixture fell on his head. Although a very sketchy expert opinion was rendered concluding that Equity Inns was without fault, the appellant never had a meaningful opportunity to conduct discovery of this expert and refute this opinion. Even if the Guffey [expert] opinion letter was determined to constitute a prima facie showing of the defendant having met its affirmative duty to the plaintiff, the appellant should have been able to pursue further discovery on the alleged negligent maintenance of the hotel and what duties and obligations, if any, were assumed by Equity Inns when it purchased the hotel. It is my belief that the better view would be for strict liability to be imposed upon an innkeeper for personal injury to a guest who is without fault. If that is not the majority view, the least they could have done was to clarify or modify existing law to their liking. The majority does absolutely nothing to enunciate existing law, nor to modify or clarify it. The majority leaves the law even murkier than it has been for the last sixty-two years, since this Court issued the opinion of Lilly.
June 22, 2009
Not a legal profession case, but of possible interest is a decision issued last week by the Utah Supreme Court. The plaintiff is an amateur herpetologist with an interest in rubber boa snakes (which are real, not made of rubber). The Utah Division of Wildlife Resources seized 65 of the snakes pursuant to a warrant in an action dubbed "Operation Slither." The snakes were seized as evidence. The authorities had rebuffed an offer from the father of the defendant (who had expertise in rubber boa care that they lacked) to take care for the snakes. The plaintiff was convicted of illegal possession of some of the snakes.
After two and a half years, the plaintiff obtained an order to inspect the snakes. He then learned that all but eight had died in the "care" (the court uses the quotation marks) of the DWR. He sued DWR for damages arising from the untimely demise of the reptiles. The lawsuit was dismissed on immunity grounds that apply to claims of negligence for injuries arising out of the institution or prosecution of judicial proceedings. (Mike Frisch)
Rapid Growth, Failure To Supervise, Results In Suspension
An Arizona hearing officer has recommended a suspension of 30 days followed by probation for one year for an attorney in a matter that had originated in notification to the Bar of a series of trust account overdrafts. The lawyer retained a certified public accountant to review the escrow account who identified three causes of the problem: a device that allowed selection between trust and operating account options on the firm's credit card that resulted in deposits in only the operating account, failure to maintain sufficient funds to cover merchant fees and "non-material errors" due to typos.
The attorney had failed to cause monthly reconciliations and to properly supervise employees. The rapid growth of the lawyer's firm from a solo practice to a firm with multiple lawyers had contributed to the misconduct. The lawyer had fully coopetated with the Bar's investigation and was remorseful. (Mike Frisch)
Disbarment In Texas
An attorney who was convicted on his guilty plea to possession of child pornography was disbarred by the Texas Board of Disciplinary Appeals. The attorney had defaulted on the disciplinary charges. The board imposed the sanction in light of the conviction for an intentional serious crime. In the criminal matter, the attorney was sentence to 78 months incarceration.'
Details about the criminal case are provided in this linked announcement from the United States Attorney's office in Houston. (Mike Frisch)