July 9, 2009
"The Province Of Licensed Attorneys"
The Florida Supreme Court denied the reinstatement petition of an attorney who had been suspended for two years in 2006 for negligent misappropriation. The court agreed with the Bar that the petitioner had not been in strict compliance with the order of suspension. It rejected a referee's finding that he had not practiced law while suspended; rather, during the course of paralegal and consulting work:
...although [he] informed his clients that he could not dispense legal advice, he was not simply identifying applicable statutes and ordinances with regard to opening arcades. In fact, [he] testified that he would find the ordinances applicable to the jurisdiction in which an arcade was located and admittedly provided advice based on his legal skill. which is greater than that possessed by the average citizen. Further...he gave advice on opening arcades, reported on changes in the law applicable to this area, reviewed leases, researched ordinances applicable to new arcade sites, and consulted with a representative of a state attorney's office on the proper interpretation of gaming law for an attorney's criminal client...trading on one's enhanced legal skill and knowledge to advice clients on how to legally proceed with a business transaction and on changes in the law based on statutory research and legal interpretation is the province of licensed attorneys.
Thanks for the spelling correction.
Threats Draw Sanction
A District Committee of the Virginia State Bar has imposed a public reprimand in a contested matter where an employee of the attorney had confided to her that she had never divorced her third husband before marrying husband number four. After the fourth husband had died, the employee sought the lawyer's advice about the possible detrimental effect of this information on her claims for veteran's benefits that she had applied for after the death.
There was then an employment dispute that led to a bar complaint and a claim for unemployment benefits. The attorney sent the now former employee an email threatening to notify the Veterans Administration of the problem. The lawyer sent a second email to the former employee advising her that the issue had been brought to the attention of a United States Attorney.
The committee found that the lawyer had breached the duty of confidentiality and presented or threatened to present charges solely to obtain an advantage in a civil matter. Interestingly, the committee found "that it is not necessary to find that an attorney client relationship existed between [the attorney and employee] in order to trigger [the attorney's] obligations....under Rule 1.6." (Mike Frisch)
Notwithstanding the objections of the Administrator, an Illinois hearing board has recommended that a petition for reinstatement be granted. The attorney had been suspended in 2006 for a year and a day for a bizarre scheme to induce fellow members of a public defender's office to leave to join a firm that she purportedly was starting up with the aid of family wealth and a committed source of business. The information given to her colleagues was false:
Petitioner testified [in the reinstatement] that in 2001 she spoke to two other attorneys in her office, Peter Gruber and Gregory Brown, about forming a law firm. Thereafter, she met with three additional attorneys from the public defender’s office, Myrrha Guzman, Jeanne Meyer and Kimberly Small, and an attorney from the Kane County State’s Attorney’s office, Christie Krupp, and offered each of them positions as associates in the firm. Petitioner represented to the latter attorneys that she, Gruber, and Brown were forming a law firm, that they had municipal contracts with the City of Elgin, Dundee and Carpentersville and they would be handling closings for a new housing development. She advised the attorneys that she would be funding the firm with her personal wealth which derived from property ownership, an interest in a shopping mall, and gravel rights. In fact, her representations regarding the work to be done by the firm and her personal wealth were completely untrue.
Petitioner acknowledged that in support of her scheme she created, or assisted in creating, and disseminated articles of incorporation for her intended law firm. Further, she identified a deposit slip reflecting a deposit of $5,200,000 into an account at Bank One, and stated that the handwriting on the deposit slip was hers. She did not recall creating the deposit slip, but has no reason to believe she did not create it. She stated she does not recall all of her statements and actions from 2001 and early 2002.
Petitioner testified she looked at several buildings in Kane County to house her purported law firm, and worked with a real estate agent. She entered into contracts for several specific properties, but then reneged on her promise to purchase. In one instance she forfeited $5,000 in earnest money.
Petitioner acknowledged representing to the prospective members of her law firm that she would be establishing a foundation known as Cindy’s Wishful Thinkings, Incorporated. Although the foundation was entirely fictitious, she created or participated in the creation of various documents for the foundation, including bylaws and resolutions, and compiled a list of assets, the value of which was represented to be over $41 million, that purportedly belonged to the foundation. Petitioner further represented to the attorneys that she intended to form a not-for-profit-organization known as the Monica Gifford Foundation to assist at-risk youth in Kane County, and acknowledged creating bylaws for that foundation. The foundation was never established because Petitioner did not have the financial means to fund it. Petitioner stated that her discussions with the other attorneys were not conducted in secret, and their intentions were well known within the office.
The hearing board evaluated medical testimony offered by the petitioner and the Administrator in concluding that reinstatement would not be detrimental to the public and the profession;
The hearing board recommends that the petitioner continue with treatment and write a letter of apology to the former colleagues. Carolyn Elefant had a post at MyShingle that discussed some lessons from the underlying disciplinary case. (Mike Frisch)
July 8, 2009
Return To Sender
In Hawaii, when the Supreme Court orders an attorney to surrender their law license, they literally mean that you are supposed to return the original. Hence, the following order:
IT IS HEREBY ORDERED that the Clerk shall accept Petitioner Dwyer's June 1, 2009, letter in lieu of the original certificate evidencing his license to practice law in this State. If Petitioner Dwyer finds the original certificate evidencing his license to practice law in this State, he shall immediately deposit the same with the Clerk of this court.
DATED: Honolulu, Hawai‘i, July 1, 2009.
July 7, 2009
Consequences Of Conviction
The Illinois Administrator has filed a complaint based on an attorney's conviction after jury trial of felony aggravated driving under the influence and failure to report an accident involving death. The complaint alleges the following factual predicate of the conviction:
On or about August 14, 2004, after consuming two to three beers while watching the White Sox game on television, Respondent left his home in his van to get some food at a Wendy’s fast food restaurant. On his way to Wendy’s, Respondent was driving north bound on Waukegan Road, in Deerfield, Illinois, at approximately 11:00 p.m. when he struck Thad Martens ("Martens") in the 1950 block of Waukegan Road as Martens was riding his bicycle alongside the road.
After hitting Martens, Respondent returned home, leaving the van and taking another automobile back out to get food at Wendy’s. While Respondent was gone, his wife...began looking in the house for him and when she checked to see if he had left in a car, she saw the van’s windshield, side mirror and side window had been broken.
Upon Respondent’s return home with the food, he ate his food and his wife questioned him about the damage to their van. Respondent told his wife that he hit a bike that was in the middle of the road.
At approximately 12:00 a.m. on August 15, 2004, [his wife] asked Respondent to take her to the place he hit the bike. Respondent and [his wife] then returned to the scene of the accident and observed Thad Martens lying on the ground by the roadside, unconscious. Respondent and [his wife] then returned home and discussed what they should do.
On August 15, 2004 at 1:42 a.m., Respondent and his wife appeared at the Deerfield Police Department to report the incident. Shortly thereafter, while at the police station Respondent submitted to a breathalyzer test which registered .097.
Martens sustained multiple injuries due to the August 14, 2004 incident including four broken limbs, severe brain trauma, and partial paralysis. He died several months later after contracting pneumonia in a nursing home.
A news report in the Deerfield (Il.) Review about the trial states that prosecutors alleged that the lawyer ate a cheeseburger and fries while the victim lay dying.
In a disciplinary proceeding, the conviction is accorded conclusive effect. The lawyer may not offer evidence to negate any essential element of the offense. Here, the failure to report appears to be a strict liability offense without a "knowing" element. The lawyer may be able to contend that he did not realize he hit a person until the return to the scene and that the facts do not show indifference to human life. The almost two hour delay in going to the police will certainly be a problem as the statute requires a report within a half hour. If he is an alcoholic and in recovery, he might avoid disbarment here under Illinois precedents.
Where there is plea, the attorney is bound by any admission of fact made in connection with the plea. When there is a contested trial, it is more difficult to precisely determine what underlying facts have been conclusively proved. Of course, the attorney also will be bound any admissions made in the criminal case. (Mike Frisch)
Public Information Promotes Public Protection
Here's a nice new feature of the web page of the Michigan Attorney Discipline Board-- petitions for reinstatement to practice law are now posted on line. The petition has notice that persons interested in either supporting or opposing the application for readmission should contact the responsible disciplinary counsel.
I think that this is a great idea that should be followed by all those jurisdictions (such as Arizona, Pennsylvania, Louisiana and Illinois) that have consumer (i.e. public) friendly web pages should incorporate into their sites. All jurisdictions that don't have consumer friendly web pages should but will not until someone (HALT, perhaps) pushes the issue. All public information about attorney discipline proceedings should be available on line if we are serious about public protection as the primary goal of legitimate self-regulation. (Mike Frisch)
Well-Intentioned Neglect Results In Suspension
The New York Appellate Division for the First Judicial Department resolved a disagreement over the appropriate sanction by imposing a three month suspension in a matter involving two instances of client neglect. A hearing panel had recommended a six month suspension. On review, a referee favored a public censure. As one might suppose, the attorney sought a private reprimand rather than censure; disciplinary counsel supported the six months. The court here split the difference.
The court's view of the misconduct:
As found by the Referee and conceded by the Hearing Panel, the evidence
"clearly indicated that the respondent, although taking on matters that he was not prepared to handle, sought to assist members of his community who did not have access to appropriate legal assistance and/or did not have the funds to procure such assistance. His motives and intentions were clearly those of a person who sought to do good deeds. In many cases he took on matters without compensation, hoping that eventually he would be able to resolve the matters to the benefit of his clients. However, he often lacked the expertise and finances to attain these goals."
The conclusion, endorsed by the Hearing Panel, is that respondent's neglect of the client matters was inadvertent and that misuse of his attorney escrow account was the result of confusion with his personal account, which is maintained at the same bank and bears an account number ending with the same two digits.
As to sanction:
Respondent admits that he finds being a solo practitioner to be overwhelming and should seek employment with a law firm to avoid similar problems in future. He adds that he suffers from seasonal depression and has received therapy, which he has found to be helpful. Although respondent has produced no expert medical evidence to establish a causal connection between this condition and his neglect, the Committee concludes that his failure to exercise suitable diligence is the result of taking on more matters than he could handle, including many cases resulting in little or no payment for his services.
While public censure is a suitable sanction for neglect of client matters if an attorney has no history of misconduct warranting disciplinary action, where the attorney has previously neglected legal matters and received admonitions, a period of suspension is appropriate. In view of respondent's extensive pro bono work, service to his community and the lack of venal intent, a period of suspension of three months consitutes the appropriate sanction.
OK To Serve
The Judicial Ethics Advisory Committee of Florida has rendered an opinion on the following question:
The Inquiring Judge’s synagogue has a committee comprised of several members of the synagogue that review applications submitted by prospective members who assert that they cannot afford to pay full membership dues. An applicant may submit personal financial information to be reviewed by the synagogue committee to determine if the applicant qualifies for reduction of membership dues, and if so, by how much. The only personal contact that the synagogue committee has with applicants is when, in rare instances, applicants request a face-to-face meeting with the committee to present their case. Although the synagogue committee tries to keep its membership anonymous, the names of committee members can be determined if this information is sought.
The Inquiring Judge wants to know if a judge may be a member of this synagogue committee.
Probation Failures Lead To Disbarment
The California State Bar court recently granted a motion to publish a 2007 decision alerting the Bar to the consequences of non-cooperation with the disciplinary process. The attorney has almost no California practice; rather, he practices in Washington State. He has struggled with alcoholism but has been sober for over a decade.
He was subject to a public reprimand in Washington for wrongful retention of a $1,700 advanced fee (since repaid after the client obtained a judgement) that resulted in a reciprocal California sanction of private reproval with conditions attached for 12 months. His failure to fulfill the terms resulted in a series of sanctions that ultimately led to disbarment:
Had [he] complied with those [initial] conditions, he would not be facing disbarment. Howver, since his private reproval, [he] has had his reproval period extended by one year, has received a six-month stayed suspension and two years' probation, has had his probation revoked and has suffered a six-month actual suspension. This increasingly strict discipline should have provided [him] with both the incentive and opportunity to comply with the conditions of his probation, and yet he is before us a fourth time for violating another court order.
I am reluctant to criticize any decision that underscores the obligation to cooperate with the disciplinary system, but there is a fair argument that the initial probationary conditions (not imposed by the disciplining Washington court) for a lawyer with virtually no California practice should not have been imposed. This has led to a significant drain of limited bar resources to little beneficial end. (Mike Frisch)
Malpractice Findings Do Not Bind Disciplining Court
The Wisconsin Supreme Court imposed a 60 day suspension in a matter involving sloppy trust account administration and other misconduct:
Here, eight of the alleged counts of misconduct involved sloppy and careless trust account violations. Accurate trust account records are important to ensure clients and the public have confidence in an attorney's management of client funds. We are mindful, however, that the referee found clients were not adversely affected by the trust account anomalies that occurred here. Attorney McKloskey stipulated to this misconduct and argued, in mitigation, that he relied on an assistant to handle these matters.
The remaining three counts of misconduct reflect serious errors of judgment, but again, there was no finding that Attorney McKloskey was dishonest or that he benefited financially from the misconduct he committed in connection with these complex and interrelated matters. Therefore, we agree that a 60-day suspension is reasonable in this case. The referee also recommended the court impose the costs of this litigation on Attorney McKloskey, and we accept that recommendation as well.
The court agreed with the conclusion of the referee that certain findings in a related legal malpractice action (finding no attorney-client relationship with a putative client) were not entitled to preclusive effect in the bar discipline case:
In proceedings before the referee, Attorney McKloskey advanced a number of affirmative defenses to the charges of misconduct relating to his handling of these matters. He noted that in the civil malpractice action he was found to have represented the company, TJC, not D.C. So, in proceedings before the referee, he argued that issue preclusion should apply, and he took the position that he did not represent D.C. in the Westerfeld litigation. The referee was not persuaded by these arguments. Wisconsin courts hold that even when there is no express attorney-client relationship, such a relationship may be implied under the circumstances of a particular case, depending on the nature of the work performed and the circumstances under which client confidences may have been divulged.
In proceedings before the referee, Attorney McKloskey advanced a number of affirmative defenses to the charges of misconduct relating to his handling of these matters. He noted that in the civil malpractice action he was found to have represented the company, TJC, not D.C. So, in proceedings before the referee, he argued that issue preclusion should apply, and he took the position that he did not represent D.C. in the Westerfeld litigation.
The referee was not persuaded by these arguments. Wisconsin courts hold that even when there is no express attorney-client relationship, such a relationship may be implied under the circumstances of a particular case, depending on the nature of the work performed and the circumstances under which client confidences may have been divulged.
As the referee noted, the range of disciplinary charges filed by the OLR was far broader in scope than the malpractice claim. The referee also noted that Attorney McKloskey had represented D.C. on a number of related matters and had communicated directly with him regarding these matters, including consulting him about a $100,000 settlement offer in the Westerfeld matter.
In other words, D.C. reasonably relied on Attorney McKloskey to represent his interests in the Westerfeld matter. Attorney McKloskey also knew about the parties' divorce and knew that it was acrimonious. The referee thus found that "[D.C.] was a client" and noted that Attorney McKloskey's testimony in his own defense "left much to be desired." The referee concluded that "[Attorney] McKloskey should not have blindly accepted oral check writing instructions from [T.C.]."
The attorney had represented a closely-held company and was found to have ceased to communicate with one of the two principals of the business during the course of complex litigation and the eventual resolution of the matter. (Mike Frisch)
July 6, 2009
No Boxes For You!
An opinion from the South Carolina Advisory Committee on Standards of Judicial Conduct:
RE: Propriety of a probate judge seeking donations of cardboard boxes in order to facilitate the Probate Court's move to a new facility.
The Probate Court in a particular county is moving to a new facility. The Probate judge has been informed that the judge will need to seek donations of cardboard boxes from local businesses in order to facilitate the move. The judge is concerned that seeking such donations might constitute a violation of the Code of Judicial Conduct.
A Probate Judge may not seek donations of supplies to facilitate the Probate Court's move to a new facility.
A judge shall not accept a gift or favor from anyone except in connection with a public testimonial, a bar-related function, or activity devoted to the improvement of the law. Canon 4D(5), Rule 501, SCACR. Furthermore, Canon 2.B of the Code of Judicial Conduct, Rule 501, SCACR, provides that a judge shall not lend the prestige of the judicial office to advance the interests of the judge or others. For the judge to seek out donations of boxes from local businesses, the judge would be asking for a gift or favor not related to a public testimonial, a bar-related function, or activity devoted to the improvement of the law. It would also require the judge to lend the prestige of judicial office to advance the interests of the Probate Court and could induce pressure on the local businesses to donate. Thus, the Probate Judge may not seek donations of boxes or other moving supplies to facilitate the move of the Probate Court.
A Louisiana hearing committee has recommended the permanent disbarment of a lawyer as a result of his federal conviction for bribery and conspiracy in connection with a program that received federal funds. The attorney was the director of the Louisiana Film Commission (a post that presumably did not involve directing the films) and had submitted inflated budgets that caused fraudulent and inflated tax credits to be issued. His payoff was $67,000 in bribes.
According to the memo filed by the Office of Disciplinary Counsel (quoted in the report), "[h]is corruption of [the] process for his own personal financial gain has threatened to set back the filming industry in Louisiana and has cemented once again into the minds of citizens of this state and around the country the unfortunate belief that corruption runs rampant in this state."
A Washington Post article about the criminal case is linked here. (Mike Frisch)
Rule Violation By Disciplinary Counsel No Basis to Dismiss Misconduct Findings
The New York Appellate Division for the Fourth Judicial Department has censured an assistant district attorney who violated a court order that prohibited him from speaking to a testifying expert witness during a recess. He also had initially denied doing so. In an unrelated matter, the ADA had falsely informed a victim's advocate and the victim's family that he had objected to a plea bargain in the case.
The court found that disciplinary counsel had violated procedural rules by showing the ADA's response to the bar complaint to a witness. The pertinent rule allows only the complainant to see the response. However, the court found that the violation did not necessitate dismissal of the bar charges. The rule is designed to protect the attorney's reputation from potentially unfounded complaints and there was no public disclosure of confidential information.
Both Sides Now
A Louisiana hearing committee has recommended a six month suspension with two months deferred in a matter where an Orleans Parish Assistant District Attorney continued to represent criminal defendants in the Parish after taking his oath of office as a prosecutor. The complaint was filed by the New Orleans District Attorney.
The Committee was not entirely unsympathetic to the lawyer:
While the Committee finds clear and convincing evidence supports a finding that the violations were knowing, however, that evidence does not support a finding that the violations were intentional. It appears to the Committee that Respondent thought there would be no harm in his perfunctory appearences to assist in the winding up of the cases against his former clients. Respondent's letter to the Disciplinary Counsel raises at least the likelihood that disclosures of the conflicts were made and consented to by the courts and by those whose interests were conflicted...No countervailing evidence was offered.
One concern I have here is that the attorney, after submitting the letters referred to above, failed to participate in the disciplinary proceedings. I have some difficulty giving any weight to favorable claims in the letters that were not made under oath and subject to cross-examination. (Mike Frisch)
Improper Remarks No Basis For Reversal
The Delaware Supreme Court found that a prosecutor had crossed the line into improper closing argument by mocking the defendant's testimony as "ridiculous," "cute," and a "sales pitch" but declined to find reversible plain error and affirmed a second degree murder conviction. The court noted that the case was not close and that the defense had not objected to the improper remarks. (Mike Frisch)
Regret Is Not Enough
An attorney who had failed to file a personal injury suit and allowed the statute of limitations to expire was suspended for five months. The Tennessee Supreme Court reviewed and affirmed the sanction, rejecting the attorney's appeal seeking a public censure or shorter suspension. the court set forth the standard of review, concluding that the sanction was not arbitrary or capricious and was suppoted by substantial and material evidence. While the attorney had offered to pay the clients $9,000 and told them about the blown statute, he did not advise them of a possible malpractice claim or to seek the advice of independent counsel. the attorney had previouslt been suspended for 30 days for unlawful conversion from his law firm of an amount in excess of $90.000. The court here did not find that his "expression of regret is sufficient to merit a reduction of the sanction imposed...." (Mike Frisch)
"No Other Appropriate Sanction"
The District of Columbia Court of Appeals heaped praise on a hearing committee for its "meticulous findings and exlemplary analysis" and disbarred an attorney for a laundry list of seroius violations that included seeking to have his own mother declared incompetent and to put himself in charge of her substantial assets. He then obtained her signature on legal proceedings intended to benefit himself after she became incompetent.
The court stated:
Respondent has not challenged the Board [on Professional Responsibility]'s recommendation of disbarment. One can readily see why, for as the Board stated, "There is no other appropriate discipline on the facts and circumstances of this case."
From the California Bar Journal:
[An attorney] was suspended for one year, stayed, placed on two years of probation and was ordered to take the MPRE within one year. The order took effect Jan. 3, 2009.
In 2005, [he] represented a defendant in federal court in Oklahoma although he was not a member of that state’s bar. He and his co-counsel incorrectly believed [he] could be admitted if the co-counsel sponsored and “waived” him in. When they learned that was not the case, [He] filed a formal application for admission to the Oklahoma District Court Bar.
As part of the application, he was required to disclose all legal proceedings in which he had been charged with the commission of a crime. Although [he] disclosed he had pleaded no contest to a charge of driving under the influence in 1996, he did not disclose that between 1989 and 2003, other criminal charges, including reckless driving and disturbing the peace, had been filed against him. Some were dismissed and some resulted in conviction.
[The attorney] stipulated that by filing an incomplete application, he failed to maintain the respect due to the courts.
He also was privately reproved in 2001.
Suing The Dead
An attempt to substitute a law firm for a deceased defendant was rejected by the New York Appellate Division for the First Judicial Department:
In December 2006, just before the statute of limitations expired (CPLR 214), plaintiff commenced this action naming as sole defendant the driver of a car that had allegedly struck plaintiff's car, injuring plaintiff. However, that driver had died in December 2004. After trying to identify an administrator of the driver's estate and starting a second action against the driver's wife, on the mistaken belief that she was the administrator of his estate, plaintiff moved to substitute, as a party defendant, the law firm assigned to this matter by the deceased driver's liability insurer. That motion was granted on default and the court subsequently denied the law firm's motion to vacate the default and dismiss the complaint.
Since one cannot commence an action against a deceased person, this action was a nullity from its inception (see Marte v Graber, 58 AD3d 1, 2-3 ). Consequently, the motion court lacked jurisdiction to hear and determine the initial action and erred in denying defendant's motion to dismiss.