January 17, 2009
A Dose of Legal Realism - Early Stage Company Version
Posted by Jeff Lipshaw
The New York Times has a story today about a start-up company called Boxee, whose software product permits the user to access multiple Internet video and music sites over a television, creating an alternative to cable or satellite. The software is free. As to whether what it is doing is violates anybody's IP rights, the founder, Avner Ronen "said that like many start-ups, Boxee was definitely leaping without looking. 'Don’t assume we have lawyers. That’s expensive,' he said."
Homage to John Mortimer
Posted by Jeff Lipshaw
The Rumpole stories got a little thin (or strained) in the past few years, but the first four or five collections were superb. You could enjoy them in print, by watching the Thames/BBC productions with Leo McKern, or by listening to the recorded books, some of which McKern read, and as they were written in the first person, it was as though Rumpole was talking to you personally.
Here's to Horace, Hilda ("She Who Must Be Obeyed"), Phillida Trant Erskine-Brown (the Portia of our Chambers), her husband Claude, Guthrie Featherstone, and the rest.
January 16, 2009
County Attorney Suspended
The Kansas Supreme Court suspended a county attorney for six months based on the following facts:
In early May 2007, certain minors attended a Greeley-area party at which beer was consumed. One minor girl, C.H., who had drunk approximately six beers, was photographed by other partygoers while she had sexual intercourse with a foreign exchange student, M.V. The amateur photographers also recorded certain minors drinking beer at the party.
Within a few days, C.H. informed her school counselor that M.V. had sexually assaulted her at the party. Law enforcement was notified. During this same time period, the Anderson County Sheriff's office was also investigating a similar report about M.V. from a second female high school student.
Law enforcement officers obtained some of the photographs taken at the May party and forwarded them to Respondent. Respondent altered the photographs to obscure faces and certain body parts but not others. He concluded that he would not pursue prosecution of M.V. because Respondent believed the sexual conduct depicted in the photographs to have been consensual.
The Anderson County Review newspaper ran an article in early July 2007 in which it discussed Respondent's view of the incident. The newspaper further reported that Respondent planned to show the photographs from the May party to the parents of minors who had attended.
Upon reading the article, C.H.'s mother contacted Respondent to tell him that he did not have her permission to show the photographs of her minor daughter to others. The Respondent challenged the mother, saying he did not need her permission. Thereafter, Respondent proceeded with his plan to show the photographs to several parents of minors who attended the party.
The newspaper ran a follow-up article regarding the photographs as well as an editorial written by Sandy Barnett, Executive Director of the Kansas Coalition Against Sexual and Domestic Violence. After counsel for C.H. and her mother contacted Respondent about sealing the photographs from public view, Respondent wrote a return letter, stating,
"As the photographs you refer to are evidence of criminal activity by several minors and as I cannot lawfully withhold evidence, I have allowed and will continue to allow the parents of potential respondents to view altered versions of them, in my office . . .
". . . I further want to thank you for any future litigation that you pursue in this matter as it will inevitably generate a large amount of publicity for the issue of underage drinking, hosting of minors and the harmful effects of minors engaging in public sexual acts. I was beginning to fear that nothing would be done and that this issue would fade from the public eye."
C.H. was subjected to public ridicule as a result of these events, and she now suffers from depression.
The attorney was found to have violated Kansas Rule 4.4 by engaging in conduct that had no substantial purpose other than to embarrass, delay or burden a third person as well as conduct prejudicial to the administration of justice. The court rejected the suggestion that his motive to discourage underage drinking or asserted conditions mitigated the misconduct:
Counsel for Respondent argued to us that, although his client's conduct was egregious, it arose out of a "right reason," i.e., a zeal to end underage drinking. Counsel also asserted that the record on appeal contained evidence that his client suffered from Asperger's Syndrome, a malady that impairs his ability to empathize with others and that his client had apologized to C.H.'s mother after the disciplinary hearing concluded.
When Respondent addressed this court, he echoed his counsel's "right reason" argument, saying he had seen the damage underage drinking could do and thought he could "fix the world" by showing the photographs to the parents of teens depicted drinking at the party. Nevertheless, he demonstrated little understanding of how troubling his method was. Had he been one of those parents shown the photographs, he said, he would have been angry with himself for being a "bad parent." He also denied that he had contacted the press about his plan to display the photographs but admitted the first story followed his mention of that plan to a reporter and another lawyer during a Rotary meeting. He stated explicitly that he did not understand why other women and girls who believed themselves to be victims of sex crimes might now be reluctant to report the crimes or assist with prosecutions. Also, despite his counsel's assertion that he had several mentors who would guide the exercise of his prosecutorial discretion, he had not pursued any independent review of his decision not to prosecute in C.H.'s case. Regarding Asperger's Syndrome, Respondent said he had been diagnosed with Attention Deficit Disorder (ADD) during his first year of law school and that there was a letter in the record on appeal about his condition. In addition, he took the position that his condition had worked to his advantage as a prosecutor because he could be dispassionate when evaluating cases.
The letter in the record on appeal to which both Respondent and his counsel evidently referred was written by Respondent's doctor. It confirms that Respondent has a diagnosis of ADD. Beyond that, it says only: "[Campbell] also presents with other personal characteristics that have become apparent during his years of treatment. The possible diagnosis of high functioning Autism - Asperger's Disorder has been considered during his treatment. At this point, my professional medical opinion is he does not present with sufficient criteria for diagnosing those conditions, however, one does not need to meet the full level of intensity to make a definitive subsymdromal diagnosis." Counsel for Respondent, although he discussed Asperger's Syndrome in his argument, explicitly did not invoke it as a defense to the conduct in which Respondent engaged.
The comment to this post correctly notes that the conduct ran afoul of a specific Kansas statute mandating the confidentiality of the information that the attorney disclosed. (Mike Frisch)
Failure To Report Felony Results In Disbarment
The Nebraska Supreme Court disbarred an attorney who had been convicted on his plea of guilty of failure to report the felonious activities of his client. The lawyer handled land use matters and also practiced (and was disbarred) in Florida. His client was on the Palm Beach County Board of County Commissioners and had purchased a parcel of undeveloped land in a place called Nine Gems. The client had used his public position to advance and leverage the sale of Nine Gems to the county.
The factual basis for the plea was that the attorney had learned that the client had misused his public position before the sale had closed and had failed to report the client's self-dealings to authorities. (Mike Frisch)
Suspension For False Testimony
The full Massachusetts Supreme Judicial Court yesterday remanded a bar discipline matter to a single justice with direction to impose a six-month suspension of an assistant district attorney found to have testified falsely under oath at a trial in Tennessee where she had been the victim of a domestic assault. The incident had taken place when the attorney was clerking for a federal judge in Nashville and was involved in a romantic relationship with the defendant. A hearing committee had recommended a reprimand. The court noted significant mitigation:
From the immediate aftermath of the January, 2005, incident until the day of Knox's trial, the respondent was clear and unequivocal that she neither wanted to press charges against Knox nor wanted to testify at trial. Yet, her wishes were ignored, and she was called as a witness against Knox. The hearing committee found credible the opinions of Dr. Rosmarin that the respondent's false testimony was "genuinely but superficially motivated by a moral decision to protect Mr. Knox," that she had a "cognitive blind spot" for her own ethical and legal jeopardy, and that her focus was on protecting Knox and his children. The committee also credited the testimony of Dr. Harney that the respondent "was not cognizant of engaging in unethical behavior during her false testimony." In all, the respondent's dysfunctional psychological state, brought about by the domestic abuse, was a substantial contributing cause of her misconduct. Bar counsel accepts that the respondent did not act for a selfish motive. In addition, the hearing committee credited the testimony of Dr. Rosmarin that, because the respondent has accepted responsibility for her actions and has received psychological treatment, she is highly unlikely to breach her ethical duties again and is "more likely to be hyper alert to even gray zone improprieties." These unique and compelling mitigating circumstances warrant a downward departure from the sanction of a two-year suspension.
By the same token, we cannot overlook or minimize the fact that the respondent knowingly gave false testimony, under oath, at a criminal trial, the result of which was that the charges against Knox were dismissed. As Drs. Rosmarin and Harney testified, the physical and emotional trauma suffered by the respondent was considerable, and it served to explain and put into perspective the underlying reasons for her false testimony. However, those reasons did not negate the fact of the respondent's misconduct. Contrary to the respondent's contention, even though she may not have made her false statement while she, herself, was engaged in the practice of law, the respondent made such statement while participating in a formal legal proceeding at which she was obligated to give truthful testimony. Moreover, the seriousness of that misconduct cannot be downplayed simply by saying that the matter about which she testified falsely was a private one that arose in the context of a purely personal relationship. When the respondent was admitted as an attorney in this Commonwealth, she took an oath of office pursuant to G.L. c. 221, § 38, in which she solemnly swore, among other things, that she would "do no falsehood, nor consent to the doing of any in court." All attorneys, whether those of long standing or those recently admitted to the Massachusetts bar, are expected to know and understand their professional obligation to be truthful in court. It is a simple and unambiguous standard of ethical conduct, and the respondent violated it. Notwithstanding the substantial mitigating factors in this case, we cannot condone the actions of an attorney in giving false testimony under oath, irrespective of the circumstances. We conclude that the appropriate disciplinary sanction for the respondent's misconduct is a six-month suspension from the practice of law.
We recognize and share the board's concern about the perceived inequity of sanctioning the respondent more severely than attorneys who have been convicted of domestic assault. See Matter of Grella, 438 Mass. 47, 51 (2002) (attorney suspended for two months after conviction of misdemeanor arising from violent assault on estranged wife). As we have stated, "[e]ngaging in violent conduct is antithetical to the privilege of practicing law." Id. at 52. The distinction with respect to the circumstances of the present case is that the respondent's misconduct occurred in the context of testifying under oath in a criminal trial. Such misconduct was a violation of the fundamental tenets of her oath of office and of her ethical obligations, matters at the very heart of the legal profession.
The case is Matter of Balliro. Readers may recall that we posted a Minnesota decision yesterday concerning an attorney who was suspended for 90 days for testifying falsely in a deposition where there did not appear to be mitigation such as that found here.(Mike Frisch)
Presumptive Sanction Imposed
The full Massachusetts Supreme Judicial Court affirmed the conclusion of a single justice that an attorney should be suspended indefinitely for intentional misuse of client funds. The court rejected a claim of discrimination based on national origin:
We turn now to the second issue raised by Osagiede--that the hearing committee and the board improperly considered his national origin against him. We find no merit to this assertion. At Osagiede's hearing, bar counsel questioned Osagiede about his involvement in Nigerian politics, his absences from the United States while he was a candidate in a primary election in Nigeria, and the maintenance of his legal practice while he was away. Osagiede's counsel objected to the line of questioning, arguing that bar counsel's references to Nigeria as Osagiede's home was meant to imply that Osagiede was "less than an American than any other American citizen in this country" and that the questions "clearly point[ed] towards unfair prejudice against [his] client ... in terms of race and in terms of his citizenship." The hearing committee overruled the objection, after indicating that the implications raised by Osagiede's counsel had not occurred to them, but also asked bar counsel to try to ask any further questions in such a way as to obviate the concerns raised by Osagiede's counsel. Bar counsel did not ask any further questions.
Osagiede asserts that bar counsel was trying to suggest that because Osagiede is from Nigeria he would suffer less from a harsh sanction than would an attorney from the United States, and that the hearing committee then improperly considered his national origin in determining the sanction to be imposed. In its consideration of any aggravating or mitigating factors, the hearing committee determined that given Osagiede's education, accomplishments as an educator and a journalist, and involvement in Nigerian politics for which Osagiede was prepared to move back to Nigeria if necessary, he had not carried the burden of showing that a suspension would cause severe hardship. See Matter of Johnson, 23 Mass. Att'y Discipline Rep. 327, 335 (2007), S. C., 452 Mass. 1010 (2008) (respondent has burden of proving matters in mitigation). We agree with the board that the committee was simply indicating that suspending Osagiede would not work any special hardship because he had skills and experience in other areas. That assessment had nothing to do with Osagiede's national origin.
The presumptive sanction for the intentional misuse of client funds, with an intent to deprive and actual deprivation of the funds, is an indefinite suspension or disbarment, Matter of Schoepfer, 426 Mass. 183, 187 (1997), citing Matter of the Discipline of an Attorney, 392 Mass. 827, 836 (1984), and the record reflects no reason that this sanction should not be imposed in this case.
Conclusion. We find no error in the hearing committee's and the board's consideration of the evidence or reference to Osagiede's national origin.
The case is Matter of Osagiede, decided January 15, 2008. (Mike Frisch)
The Fact Versus Intuition Pendulum and Whether Empirical Legal Studies Has "Legs"
Posted by Jeff Lipshaw
There's some navel-gazing out there about whether "empirical legal studies" as a discipline has, as they say in showbiz, "legs." Jonathan Simon started this at PrawfsBlawg with a speculation whether there's a relationship between bull market, faith in science, and a tendency to empirical studies, and concludes, whether or not there's anything to that hypothesis, this iteration may yet flourish. At the risk of provoking my good friend and co-editor Bill Henderson, I thought I'd draw a fine distinction.
The question is whether empiricism is a methodology or a philosophy. As a methodology, it will always have traction as long as we need data from the real world to draw conclusions about the real world. As a philosophy - that's another matter. Michael Heise's comment over at ELS Blog, in its own subtle way, raises that issue, by observing about Jonathan's post and the comments: "The discussion underscores the need for a thorough empirical study of empirical legal scholarship."
The philosophical question is what do you do with that data once you have it. What is true about it? What inferences and predictions can you derive from it? What is the relationship between the observer and the observed? Whence comes the hypothesis that serves as the basis for the design of experiments and the collection of data? What is the difference between explanation (from the standpoint of an observer) and the derivation of meaning (from the standpoint of the observed)? Aristotle and Plato didn't get the tensions between empiricism and idealism resolved, nor did Hume and Kant.
I've seen the philosophy come down to a practical level. Much of modern industrial management, under various buzz words and slogans, is all about using data rather than intuition, science rather than autocracy, to produce better quality products at a lower price - "total quality management" "statistical production control," "management by fact," "data-based management," etc. That was a swing of the pendulum that accounted for much of the productivity revolution in the U.S. between the late '80s and the bursting of the internet bubble. But I would sit in the meetings with the management equivalent of empirical scholars, and argue with them about (a) the interpretation of the data, which is something - abductive, deductive, transcendental - but it's not empirical, and (b) the polarity of fact versus intuition, and that, notwithstanding the present position of the pendulum, there was a place for both.
Criminal Probation Revocation Leads To Proposed Suspension
Prior to her 2006 admission to the Louisiana Bar, an attorney had been convicted of being on the grounds of a public elementary or secondary school without authorization amd resisting arrest. She was on probation for those offenses at the time of admission and had disclosed the convictions in the admissions process. After she was admitted, her probation was revoked as a result of entering school property without authorization again three times. She served a short jail sentence.
As a result, bar charges were brought. She defended the charges on grounds that she had lacked criminal intent and that she "was a victim of a protracted dispute with her son's school and the 'political forces' of St. Tammany Parish, Louisiana." The hearing committee rejected these contentions and has recommended that she be suspended for a year and a day:
The Committee believes that in many respects...[she] had a number of opportunities to "step back" and exercise self-control before this problem became so big.
At each junction (sic), she refused to listen to the advice and/or multiple chances and/or warning signs that events had gotten out of control--Judge Knight's admonitions at her criminal trial, resisting arrest, the police being called to school property three times, numerous interactions with school personnel, the court system and now the ODC. at each stage [she] ignored these signs at her peril. The Committee is heartened that no legal client has been harmed, but believes that [her] continued failure to take any responsibility for her actions or exercise any self-control over her accusations of conspiracy bodes ill for her career as an attorney...
The committee noted that the misconduct arose from the attorney's concern about her son's education and wellbeing. It appears that the accusations that the attorney made about the actions of the bar prosecutors (she "clearly now believes that ODC should be added to the list of parties out to 'get her') played a major role in the committee's sanction proposal.
The committee noted her commitment to pro bono work, for which she had been included in an honor roll of volunteers. (Mike Frisch)
January 15, 2009
Censure Of Brothers Proposed
An Illinois hearing board has recommended that two brothers who practice together as a firm be censured for the negligent conversion of client funds but rejected charges of dishonest conduct:
Regarding all counts, we find that Respondents committed technical conversions. We find that Respondents actions were neither willful nor reckless. We find Respondents' testimony very credible in that they failed to maintain proper bookkeeping practices. However, we also find their testimony credible in that they did not intend to convert client funds. The evidence shows that Respondents had no motive to intentionally commit conversion. The evidence shows that Respondents did not benefit from the technical conversions which took place. The evidence shows that Respondents were engaged in a very profitable law practice as well as access to a credit line if a financial need existed. We also find that issuing the $9,400 check from the client trust account was the appropriate account from which to draw a client check. We find that Respondents fully expected that their client would repay the money they paid on his behalf. We find that the technical conversions occurred due to Respondents' sloppy bookkeeping practices. Therefore, we find that the Administrator failed to meet his burden of proof by clear and convincing evidence that Respondent's engaged in conduct involving dishonesty, fraud deceit or misrepresentation. Therefore, we recommend that all allegations regarding the violation of Rule 8.4(a)(4) of the Illinois Rules of Professional Conduct be dismissed. We find that Respondents' misconduct, committing technical conversions, is conduct which tends to defeat the administration of justice and brings the legal profession into disrepute. Therefore, we find that Respondents violated Supreme Court Rule 770
As to sanction:
Here, we have determined that Respondents have committed conversion. We also have found that Respondents did not have a dishonest motive when they engaged in the misconduct. Given the proven misconduct, we must consider any evidence offered in aggravation and mitigation. There was no evidence offered in aggravation. There was no evidence offered showing that any clients were harmed by Respondents' wrongdoing. There was, however, significant mitigating evidence. Respondents have practiced law in Illinois for almost 20 years and have not been previously disciplined. At the hearing, Respondents admitted wrongdoing and expressed remorse. Respondents have fully cooperated throughout the disciplinary process. Respondents submitted character witnesses that testified to Respondents' good reputation for truth and veracity. Respondents testified to the steps they have taken to improve bookkeeping and accounting practices. Finally, Respondents have completed the ARDC Professional Responsibility course. Based on the foregoing, we recommend that both Respondents be censured.
The administrator had sought a one year suspension with all but 90 days stayed and probation for two years. (Mike Frisch)
Yagman Disbarred In New York
Controversial lawyer Stephen Yagman (Wikipedia profile linked here) was disbarred by the New York Appellate Division for the First Judicial Department. The disbarment was imposed automatically as a result of federal felony convictions for attempted income tax evasion, money laundering and bankruptcy fraud. He had previously been suspended as reciprocal discipline as a result of sanctions imposed in California.(Mike Frisch)
Short Suspension For False Testimony Under Oath
An attorney who had testified falsely under oath at a deposition was suspended for 90 days by the Minnesota Supreme Court. The testimony related to his employment compensation. A referee had proposed an indefinite suspension with the right to apply for reinstatement after six months suspension. The attorney had sought a private admonition, and had contended that there were no ethical violations because he had not knowingly testified falsely and that the statements at issue were not material. The court's order also requires him to take and pass the professional responsibility portion of the bar examination. (Mike Frisch)
No Exclusionary Rule In Bar Discipline
A Louisiana attorney was arrested on charges of distribution of marijuana as a result of a purchase by a person arrested on drug charges who set up the buy in exchange for leniency. The trial court suppressed the evidence and the criminal charges were dismissed.
Bar disciplinary charges were then brought for the criminal conduct. A hearing committee concluded that the defense of entrapment in a bar disciplinary case "has a limited place...and evidence obtained as a result of the alleged entrapment would be allowed." In any event, the committee held that the attorney had failed to prove entrapment and that the exclusionary rule does not apply in bar discipline matters. The committee recommends a suspension of no less than a year and a day. (Mike Frisch)
Varied Acts Of Misconduct
The Louisiana Attorney Disciplinary Board has recommended disbarment where
[t]he individual acts of misconduct which have been proven...vary widely. At times, the misconduct was directed toward clients, which was the case with representing a client in litigation over ownership of artwork, even though [the attorney] simultaneously claimed an interest in the artwork. [The attorney] also breached a duty owed to her client when her representation had been terminated, but she then filed an appellate brief. In that brief, [the attorney] advanced a position contrary to the position the client had taken long after [the] representation was terminated...[The attorney's] misrepresentations to a court caused her opponent to be unjustifiably evicted from his place of business. [The attorney] hurled vulgar insults, in court, toward her opposing counsel. In another appellate brief, [she] used 'vile, obscene, obnoxious or offensive [language],' while making unsubstantiated accusations that her opposing counsel was complicit in child molestation, perjury, and destruction of evidence.
The board further noted that, while the attorney had now acknowledged substance abuse problems, "her denial of telling opposing counsel 'f*** you' suggests that overall, she is not remorseful for her misconduct." (Mike Frisch)
How to Teach the Difference Between Restatement of Agency 2d §8 and Restatement of Agency 3d §2.03 in Limerick Form
Posted by Jeff Lipshaw
On the question who must cause appearance,
Say classical doctrine adherents,
"The principals do it;
That's how we construe it,
At the cost of some real world coherence!"
The South Carolina Supreme Court reinstated an attorney who had been suspended on an interim and indefinite basis with the following conditions:
1) after the date of this order, petitioner shall attend and successfully complete an anger management course; thereafter, petitioner shall submit an original signed statement from the course provider certifying that he successfully completed an anger management course to the Office of Bar Admissions; after receipt of the statement, the Office of Bar Admissions shall schedule petitioner to be sworn in as a member of the South Carolina Bar at the next scheduled admission ceremony;
2) no later than ten (10) days after his admission, petitioner shall execute an additional two (2) year monitoring contract with LHL which shall include drug testing, a mentoring program, and any other terms and conditions suggested by LHL;
3) LHL shall provide an executed copy of the monitoring contract to the Commission on Lawyer Conduct (the Commission) and shall, thereafter, provide quarterly reports to the Commission concerning petitioner’s progress; and
4) should petitioner fail to comply with the terms of the monitoring contract, LHL shall immediately notify the Commission.
January 14, 2009
Divorce Settlement No Bar To Malpractice Claim
A lawyer drew up an antenuptial agreement for a husband shortly before the wedding. The bride elect, who was not represented, signed the agreement. After six years of marriage, the wife filed for divorce. The husband's new lawyer raised concerns about the enforceability of the agreement and the husband entered into a settlement based on the "fear it would not be upheld..." The husband certified that the settlement was fair and equitable. He then sued the lawyer who had drafted the agreement for malpractice. The trial court dismissed the legal malpractice action on grounds of public policy and judicial estoppel.
The New Hampshire Supreme Court reversed, holding that the divorce settlement did not bar the malpractice action on either grounds. The husband's acknowledgement that the settlement was fair was not clearly inconsistent with his malpractice claim and there was no abuse of judicial process in allowing the claim to proceed. (Mike Frisch)
Personal Growth Leads To Reinstatement
The Oklahoma Supreme Court reinstated an attorney who had resigned from the bar while facing allegations of personally use of missing entrusted guardianship funds:
Testimony before the Trial Panel showed that at the time of his resignation, Mr. Jones was a very well known and prominent attorney in Tulsa. His counsel pointed out that Mr. Jones's ancestry is a prominent piece of Tulsa history; he is a third-generation lawyer and his family members had been important leaders of the community for many years. For over thirty years Mr. Jones carried out that family tradition. He was a well-respected attorney with a good practice, doing a great deal of community work and serving on many boards. However, his personal life was crumbling around him because of financial problems; and, in his own words, his character flaws of greed, selfishness, arrogance, pride and self-centeredness led him to become a common thief. Mr. Jones had been in practice with his father since passing the bar; but by the time of the events in question, his father had retired and was in a nursing home. Petitioner had been having financial problems for some time. He had serious tax indebtedness, tax liens had been placed on his property and collection procedures were being brought against him. He had borrowed money to pay these debts, but he had fallen behind again and knew he was in a desperate situation. In 1992, a client came to him to discuss a proposition he had received from a bank in Nigeria promising $28 million for assistance in setting up a corporation in Nigeria.
Petitioner did not realize this was a scam. Instead, he saw it as an opportunity to get money that would solve his financial problems. So, when the Nigerians explained that he first must send money to them as a show of good faith before they could send him millions of dollars, he wrongfully took funds from the guardianship account, planning to pay it back when the money from Nigeria was sent to him. His father was the ward's long-time guardian and Petitioner had been serving as custodian-in-fact, due to his father's incapacity. Petitioner testified he took his father to the bank and had him withdraw the ward's money which petitioner then used for his own benefit. The promised money from Nigeria never arrived.
Petitioner testified that he and his wife faced many adversities during the years following his resignation. They had very little income. He worked for a long period as a legal assistant for attorney Wilma Palmer, who is now a judge, and he and his wife also received some funds from a teaching ministry which they began, and continue to operate, to help others overcome similar character problems. They were homeless for a considerable time as their house had been sold by agreement to satisfy the judgments. When questioned as to whether any outstanding balance remained after the proceeds of the sale were paid on the judgments, Petitioner testified there had been no attempt to collect on a balance nor had a judgment been renewed. Ultimately, Petitioner and his wife lost everything. He explained that while many painful things happened during that time, it was nevertheless a period of tremendous personal growth and learning for him about life and about his own character and integrity. Petitioner expressed desire and intention to work with Lawyers Helping Lawyers to help others who are in trouble due to character problems. He believes that in doing so he will be able to add to the legal community as well as to the lives of the individuals.
Petitioner recounted that when he got in trouble it was the first time he recognized that he had major flaws in his character. He realized then he needed to change himself and his life and he began to work hard to make those changes. He offered no defense or excuse for his actions. Petitioner believes he has rehabilitated himself and that he is not the same person he was ten years ago. He explained that he waited so long after the five-year period to file for reinstatement because did not think he was ready before. He believes he is now a different and a better person, having developed his character and integrity so that he has the ability to deal with adversity and face problems without blaming others. In light of his personal growth, together with the control over his tax liability he has achieved through the payment plan, petitioner now considers himself worthy to make this request for reinstatement to the profession.
The court concluded that he had met his high burden of establishing present fitness to practice.
Update: thanks to Stephen for noting that there is a very thoughtful dissent, which I had failed to note in my original post. The dissent would accord no weight to the applicant's family background and, absent that factor, finds reinstatement "glaringly inconsisent" with precedent. (Mike Frisch)
Return To Practice
The Oklahoma Supreme Court has ordered the reinstatement of an attorney admitted in 1987 who had resigned from the bar in 2006 after a lenghty period of non-legal employment:
1. Petitioner is a graduate of the University of Oklahoma College of Law. She was admitted to OBA membership and licensed to practice law in Oklahoma in October, 1987.
2. She resided and practiced law in Oklahoma from her admission date until April 1, 1999. In 1999 she obtained a Master's Degree in Health Policy and Management from the University of Oklahoma, joined the Peace Corps and left Oklahoma. Later in 1999 she relocated to New Mexico where she worked for the New Mexico Primary Care Association as a health policy analyst and then as assistant director, leaving that position about September 2003. She then relocated to Kansas, where in October 2003, she became Executive Director of the Kansas Association for the Medically Underserved, a position she held until the middle of August 2007. She returned to Oklahoma in 2007 for personal family reasons, decided to again make her home here, and since her return has worked in the area of providing consulting services for community healthcare programs and has also done paralegal work for an Oklahoma City lawyer.
3. Petitioner maintained her license to practice law in Oklahoma until late March 2006, when she voluntarily resigned her OBA membership. At the time of her resignation, she was not the subject of any disciplinary investigation or proceeding.
Apparently an Oklahoma attorney who resigns under non-disciplinary circumstances (as here) must petition for reinstatement and prove present fitness at a hearing. That strikes me as a rather cumbersome process where, as here, the bar's general counsel supports the reinstatement petition. (Mike Frisch)
A Conspicuous Violation
The Pennsylvania Court of Judicial Discipline has found that a Philadelphia municipal court judge has engaged in misconduct and ordered that a hearing be held to determine the appropriate discipline. The court found that the judge had been introduced to the Counsel General of Romania at an informal social event. The counsel general related concerns about a neighbor's contact with his daughter. The judge offered to help obtain a stay away order against the neighbor that he signed and had mailed to the neighbor. The order was not filed or made part of any official record. The neighbor hired counsel who questioned the propriety of the order. The lawyer and the neighbor appeared before the judge and had him sign an order vacating the stay away.
The court here found multiple violation of judicial canons in the course of conduct: "It is difficult to call up a more singular example of conduct which would be a more conspicuous violation of the letter and the intention of Canon 2A. At a social gathering a social acquaintance puts a whisper in Respondent's ear, whereupon [he] returns to his office, draws up a document--an official-looking Order which grants his friend all the relief he could possibly wish for--which he signs and has served on the named defendant." The judge also had engaged in ex parte contacts with the counsel general's lawyer (who was also the counsel general's spouse). (Mike Frisch)
January 13, 2009
Standard Of Review
On review of a report of its Disciplinary Commission, the Arizona Supreme Court held that the commission must defer to a hearing officer's findings of fact that have a reasonable record basis. The court imposed censure and probation rather than a six month suspension that had been proposed by the commission.
The case involved a partner in a two lawyer firm who practiced with her husband. He spent more than half his time in Colorado where he also was admitted. She was in charge of the Arizona office in his absence. The bar's investigation involved a $44.27 trust account overdraft. The hearing officer found the lawyer's misconduct was the result of negligence. The commission found a more culpable state of mind. The court held that the issue was one of fact and that the board improperly had substituted its judgment for that of the hearing officer.
As a veteran of a disciplinary system of similar structure--hearing committee, board and court-- I have experienced this problem in the past. In one case in particular, a hearing committee found that a partner in a major law firm had intentionally engaged in billing fraud. The board fudged the intent finding. As a result, the court remanded to the board (the hearing committee had long since disbanded by this time). The board then decided (after over two years of reflection) that adding fictitious time to the client bills was not intentional misconduct at all. The court accepted the board's conclusion. By the time of the court's remand, mercifully, I was out of the bar discipline business.
Here, the court properly accepted the hearing officer's findings and rejected the board's recasting of those findings. (Mike Frisch)