July 24, 2009
"Eminently Practical And Efficient"
A Pennsylvania attorney attorney was suspended for failure to pay annual fess in 2002 and on disability in 2006. He petitioned for reinstatement based on his claim of rehabilitation from his disability. His prospects for reinstatement took a blow when he was convicted of an alcohol-related driving offense in Florida.
Disciplinary Counsel brought charges based on the conviction as well the failure to disclose the incident in his reinstatement questionnaire. The matter was resolved by an agreement to withdraw the reinstatement petition and impose a year and a day suspension. The Pennsylvania Supreme Court adopted the proposed disposition, which the joint petition for discipline had characterized as "eminently practical and efficient." The joint petition agrees that the focus of any future reinstatement will be on the recovery from the disabling condition. (Mike Frisch)
A man who was arrested for disturbing the peace in the Gold Strike Casino in Tunica, Mississippi died of apparent suicide while in police custody. His body was held at a local mortuary because the county did not have a morgue. After some efforts to locate and advise next-of-kin, the body was cremated. The relatives showed up and sued the county for violation of the provisions of a statute regarding notification obligations. The trial court found they had suffered damages and awarded a $20,000.00 judgment. The county appealed.
The Mississippi Supreme Court held that the statute does not create a private cause of action and reversed the judgment. A dissent would hold that the statutory notice requirement vests rights for the benefit of the relatives and establishes a cause of action on their behalf. (Mike Frisch)
Heartaches By The Number, Troubles By The Score
The Tennessee Court of Appeals has affirmed a trial court determination regarding the estate of legendary country music songwriter Harlan Perry Howard, who was described in trial testimony as the "Irving Berlin of Country Music." The estate consisted primarily of songwriting royalties. The court rejected claims by his two eldest children that his fifth wife had breached fiduciary obligations and that her accountant, who had valued the royalties, had labored under an impermissible conflict of interest. (Mike Frisch)
Cover Up Worse Than Crime
A recent decision from the New York Appellate Division for the Second Judicial Department demonstrates the worst possible way to deal with an instance of neglect. The charges and disposition are described by the court:
In or about June 2002, the respondent, as an associate with the law firm of Weinberg & Kert LLP, prepared a summons and complaint on behalf of a client, Howard Kaufman, which was signed solely by Mr. Kaufman, who was ostensibly proceeding pro se. In or about July 2002, the respondent caused the summons and complaint to be filed in the Supreme Court, Queens County, and served on the defendants on Mr. Kaufman's behalf.
In or about October 2002, Mr. Kaufman advised the law firm that the defendants had not answered the summons and complaint. The law firm directed the respondent to prepare, serve, and file motion papers on Mr. Kaufman's behalf seeking to adjudicate the defendants in default. In or about November 2002, the respondent prepared the motion papers, including Mr. Kaufman's affidavit, but failed to have those motion papers filed and served.
Charge two alleges that the respondent engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation by creating fictitious court documents and providing them to a client for the purpose of misleading the client about the status and progress of his lawsuit, in violation of Code of Professional Responsibility DR 1-102(a)(4).
In or about May 2003, Mr. Kaufman contacted the law firm to inquire about the status of his lawsuit. The respondent thereafter began creating fictitious court documents, which he provided to Mr. Kaufman over a period of time, for the purpose of misleading him as to the status and progress of his lawsuit. The fictitious court documents which respondent created and provided to Mr. Kaufman included (a) a short form order dated April 23, 2003, issued and signed by the Honorable M. Ritholtz, granting Mr. Kaufman's motion for a default judgment and referring the issue of damages to an inquest, (b) the defendant's order to show cause, signed by the Honorable M. Ritholtz on September 12, 2003, seeking to set aside the default judgment, accompanied by defense counsel's signed affirmation and the defendant's signed, but not notarized, affidavit, (c) the respondent's affirmation in opposition to the defendant's order to show cause, dated October 8, 2003, (d) a preliminary conference stipulation and order dated March 17, 2004, signed by the respondent and defense counsel, and (e) a notice of compliance/settlement conference scheduled for October 21, 2004, before the Honorable M. Ritholtz.
Charge three alleges that the respondent engaged in conduct that adversely reflects on his fitness as a lawyer by creating fictitious court documents and providing same to a client for the purpose of misleading the client about the status and progress of his lawsuit, in violation of Code of Professional Responsibiilty DR 1-102(a)(7), based on the factual specifications of charge two.
Based on the respondent's admissions to the factual allegations in the three charges and the evidence adduced at the hearing, the Special Referee erred in failing to sustain charge one. Accordingly, the Grievance Committee's motion to confirm in part and disaffirm in part the report of the Special Referee should be granted, with the result that all three charges of the petition are sustained.
In determining an appropriate measure of discipline to impose, the Grievance Committee notes that the respondent has no prior disciplinary history.
In mitigation, the respondent asked the Court to consider the treatment he underwent to deal with his anxiety disorder, his youth and inexperience, his efforts to address the issues and to voluntarily remove himself from the practice of law until such time as remedial measures could assure the non-recurrence of similar behavior, and the absence of financial harm to the client, to whom full restitution was made. The client demanded, and was paid, $7,500 to resolve his claims against the law firm. The respondent paid $6,500 of that sum. In the respondent's view, the restitution paid far exceeded any anticipated award by the courts.
July 23, 2009
Suspension For Undisclosed Revision To Agreement
From the web page of the Massachusetts Board of Bar Overseers comes the following summary of a recent matter:
From April 2000 through March 29, 2002, the respondent was employed as the director of procurement for a company that provided website access to Internet users. The respondent did not provide any legal services to the employer. On March 26, 2002, the respondent was informed that his position was being eliminated effective Friday, March 29, 2002.
The respondent was given a standard severance agreement and general release that the employer gave to all departing employees. Paragraph 3 of the agreement was titled “Release” and consisted of a thirty-two-line, single-spaced, boilerplate description of potential claims that the respondent released against the employer. The agreement contained a separate attachment specifying the severance payments to be made to the respondent upon his leaving the employer.
Sometime in early April 2002, the respondent retyped the entire second page of the agreement. The respondent deleted language from ¶ 3 releasing the employer from all common law claims, and, in its place, inserted provisions that the respondent would be paid a bonus of $850,000; that he would receive triple that amount if payment was not made within seven days; and that each of the employer’s officers and directors would be personally liable for the payments. The respondent intentionally concealed the alteration in the agreement by formatting the substituted language to fit exactly in the space left by the deleted language.
On April 19, 2002, the respondent sent the altered agreement to the employer’s director of human resources. The respondent did not include a cover letter or any other notice that he had altered the agreement, and the change went undetected. On or about April 20, 2002, the human resources director signed the altered agreement on the employer’s behalf. The respondent was sent a copy of the fully-executed altered agreement, and the original altered agreement was placed in the respondent’s personal file.
On May 17, 2002, the employer paid the respondent the severance benefits set out in the agreement but not the bonus added by the respondent unbeknownst to the employer.
On July 18, 2002, the respondent retained counsel to represent him in his claim against the employer for payment of the bonus provided for in the altered agreement as well as to secure other payments from the employer. On September 24, 2002, counsel wrote to the employer demanding, among other things, that the respondent be paid the $850,000 bonus provided for in the altered agreement.
The employer refused to make any additional payments to the respondent and, on October 11, 2002, filed suit seeking, among other things, a declaratory judgment that there was no enforceable agreement between the employer and the respondent and an order directing the respondent to return to the employer all severance payments. The respondent filed an answer denying wrongdoing and a counterclaim seeking payment of the bonus.
On March 9, 2005, the parties’ cross motions for summary judgment were filed with the court. On May 11, 2005, a judge of the superior court entered an order declaring the agreement void because there had been no meeting of the minds. The judge allowed the employer’s motion for summary judgment on all of the respondent’s counterclaims except the counts claiming the right to other payments. The case settled in July 2006 by the respondent’s agreement to pay the employer $21,000.00 and release the employer from any liability to the respondent.
The respondent’s conduct in concealing in the agreement provisions obligating his former employer to make significant payments to himself and imposing personal liability on his former employer’s officers and directors violated Mass. R. Prof. C. 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation) and (h) (conduct adversely reflecting on the fitness to practice law). His attempts to enforce the bonus, penalty, and personal liability provisions of the agreement through litigation violated Mass. R. Prof. C. 3.1 (lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous) and 8.4(d) (conduct prejudicial to the administration of justice).
The matter came before the Board of Bar Overseers on a stipulation of facts and a joint recommendation that the respondent be suspended from the practice of law for six months. In mitigation, the respondent’s conduct occurred outside the practice of law and involved an employer for which he did not provide legal services.
On June 8, 2008, the Board of Bar Overseers accepted the parties’ stipulation and joint recommendation and voted to file an Information with the Supreme Judicial Court recommending that the respondent be suspended from the practice of law for six months. On June 22, 2009, an order was entered in the Supreme Judicial Court for Suffolk County (Gants, J.), ordering that the respondent be suspended from the practice of law for six months effective thirty days from the entry of the order.
The case is Matter of Cloonan, No. BD 2009-049. (Mike Frisch)
No Cause Of Action For Unauthorized Practice Prior To Statute
From the web page of the Ohio Supreme Court:
The Supreme Court of Ohio ruled today that it has exclusive jurisdiction over the unauthorized practice of law in this state, and held that there was no legal basis for a private lawsuit based on a claim of unauthorized law practice in Ohio prior to September 2004, when the General Assembly amended R.C. 4705.07 to expressly recognize such a cause of action.
Applying that analysis to a Cuyahoga County case, the Court ruled 6-1 that a home buyer had no legal basis to seek civil damages from a mortgage lender for allegedly using non-attorneys in 2002 to perform legal services for which the lender charged a “document preparation fee.” The Court’s majority opinion was written by Justice Maureen O’Connor.
The case involved a class action lawsuit filed on behalf of Gary Greenspan of Cleveland and other plaintiffs. Greenspan sought to recover from Third Federal Savings & Loan a $300 document preparation fee that was included in the transaction costs he was charged by Third Federal in 2002 in connection with closing on a residential mortgage. The complaint alleged that the drafting of promissory notes, mortgage agreements and similar documents constituted the practice of law, and that Third Federal had gained unjust enrichment by charging Greenspan and other borrowers for the preparation of legal documents by non-lawyer clerical employees. Citing prior court decisions holding that a non-attorney is not entitled to payment for any service that constitutes the unauthorized practice of law, Greenspan asked the trial court to order the lender to refund the $300 he had paid for document preparation services.
Greenspan did not file a grievance with the Ohio Supreme Court’s Board on the Unauthorized Practice of Law or a local bar association regarding the lender’s actions, and did not obtain a ruling by the board that Third Federal’s conduct constituted the unauthorized practice of law.
Third Federal filed a pretrial motion to dismiss Greenspan’s complaint. It argued that, prior to the adoption of amendments to R.C. 4705.07 effective in September 2004, Ohio did not recognize a private cause of action (legal basis for a civil lawsuit) based on the unauthorized practice of law. The trial court granted judgment in favor of Third Federal, stating in its judgment entry that at the time Greenspan was assessed and paid the document preparation fee in 2002, there was no provision of state law that authorized civil claims based on the unauthorized practice of law.
Greenspan appealed the order dismissing his suit. While Greenspan’s appeal was pending before the 8th District Court of Appeals, that court issued a decision in a virtually identical case, Crawford v. FirstMerit Mortgage Corp. In Crawford, the 8th District held that the plaintiff could not sue to recover document preparation fees he paid to a mortgage lender prior to September 2004 because a private cause of action for unauthorized practice of law did not exist in Ohio prior to the 2004 amendment of R.C. 4705.07. Despite the holding in Crawford, a different panel of the 8th District overruled the trial court in Greenspan’s case and reinstated his suit against Third Federal. The court held that because the unauthorized practice of law was available as a defense to breach-of-contract and fee-collection actions, it “inexorably” followed that it was also available as an affirmative cause of action. The appellate court acknowledged that its decision conflicted with Crawford, but declared that Crawford was “simply in error.”
Despite the Supreme Court’s mandate in In re J.J. (2006) and subsequent rulings that courts of appeals must convene en banc (with all judges participating) to resolve conflicting rulings by different three-judge panels, the 8th District did not convene en banc to settle the conflict between Crawford and Greenspan. Third Federal sought and was granted Supreme Court review of the 8th District’s decision.
Writing for the Court in today’s decision, Justice O’Connor rejected the 8th District’s finding that Greenspan’s suit did not make a direct claim for the unauthorized practice of law, but rather asserted common-law claims for unjust enrichment and money had and received. She observed that, notwithstanding the wording of Greenspan’s complaint, “(U)ltimately, he sought to recover for Third Federal’s purported unauthorized practice of law. The fact that Greenspan creatively framed the action as one for unjust enrichment and money had and received does not alter the essential nature of the action. ... Greenspan’s complaint alleges that Third Federal charged him for legal work performed by nonattorney employees. However styled, Greenspan seeks to recover for Third Federal’s purported unauthorized practice of law.”
Because the events giving rise to Greenspan’s claim occurred before September 2004, when the legislature created a statutory cause of action for unauthorized law practice, Justice O’Connor wrote, “(T)his case turns on whether a common-law right of action for the unauthorized practice of law existed prior to 2004. Greenspan cites a myriad of cases from various state and federal courts for the proposition that courts have long recognized common-law claims for unjust enrichment and money had and received when a person without a license performs a service for which a license is required. But the caselaw upon which Greenspan relies almost exclusively relates to architectural and engineering services. Caselaw acknowledging a common-law claim for recovery of fees charged by unlicensed architects and engineers does not establish the existence of a common-law claim for the unauthorized practice of law.”
“Greenspan also points to three cases involving legal services rendered by nonattorneys in support of his argument. However, none of these cases recognizes an affirmative common-law claim for either unjust enrichment or money had and received arising from the unauthorized practice of law. Instead, the cases involve breach-of-contract and fee-collection actions in which the court allowed defendants to raise the unauthorized practice of law as a defense to the plaintiffs’ attempts to recover fees for services rendered by nonattorneys. Contrary to the Eighth District’s holding, it does not ‘inexorably’ follow that because the unauthorized practice of law may be an affirmative defense in breach-of-contract and fee-collection actions, an affirmative cause of action for the unauthorized practice of law must exist. Greenspan cites no case law, and this court is not aware of any, that recognizes an affirmative common-law cause of action for the unauthorized practice of law.”
In addition to the lack of case law recognizing a common-law claim for the unauthorized practice of law, Justice O’Connor wrote: “Greenspan simply cannot escape the fact that the Supreme Court has exclusive jurisdiction over the practice of law, including the unauthorized practice of law. Section 2(B)(1)(g), Article IV of the Ohio Constitution confers on this court ‘exclusive power to regulate, control, and define the practice of law in Ohio.’ ... Greenspan argues that because trial courts have ‘original jurisdiction in all civil cases’ pursuant to R.C. 2305.01, they must have jurisdiction over civil actions arising from claims related to the unauthorized practice of law. We are not persuaded by that argument. A common-law claim for the unauthorized practice of law would require trial courts to make determinations explicitly reserved for this court.”
She also observed that, in enacting a statutory cause of action for the unauthorized practice of law in 2004, “ the General Assembly avoided invading this court’s exclusive jurisdiction over the practice of law by creating a statutory scheme under which a claimant may commence a civil action for the unauthorized practice of law only ‘upon a finding by the supreme court that the other person has committed an act that is prohibited by the supreme court as being the unauthorized practice of law.’...
Thus, although trial courts will preside over actions brought pursuant to R.C. 4705.07(C)(2), all determinations regarding the unauthorized practice of law remain within this court’s exclusive jurisdiction. Because courts did not recognize a common-law cause of action for the unauthorized practice of law, and because such a cause would invade this court’s exclusive jurisdiction over the practice of law, a private right of action for the unauthorized practice of law did not exist before September 15, 2004.”
The majority opinion was joined by Chief Justice Thomas J. Moyer and Justices Evelyn Lundberg Stratton, Terrence O’Donnell, Judith Ann Lanzinger and Robert R. Cupp. Justice Paul E. Pfeifer dissented without opinion, stating that he would affirm the ruling of the court of appeals.
The court's decision is linked here. (Mike Frisch)
Pay Dr. D.
While noting that the determination of sanction in a bar discipline matter is "not an exact science," the Wisconsin Supreme Court imposed a 90-day suspension and restitution in matter in which the attorney had failed to pay chiropractic bills. The facts:
All of the allegations in the current complaint involve a business referral relationship that Attorney['s] law firm ("the law firm") maintained with a chiropractor, Dr. D. Attorney...or his partner...and certain clients would execute a doctor's lien whereby the client and the law firm agreed to pay for Dr. D.'s chiropractic services out of anticipated settlement proceeds
The OLR complaint alleged that in 15 cases where such a lien existed, the law firm failed to send proper written notice to Dr. D. when settlement funds were received. In some cases the law firm did inform Dr. D. that a settlement had been received. However, the referee ruled these communications did not satisfy the supreme court rule requirements, and Attorney...does not contest that finding.
In many of these cases the law firm did not pay the full amount of the chiropractic bill. Notably, neither Attorney...nor the law firm necessarily benefited financially from the law firm's failure to pay these chiropractic bills in full. The record reflects the law firm or the client sought to negotiate a fee reduction in these cases.
At some point Dr. D. retained a collection firm to pursue these accounts. On at least two occasions the law firm wrote checks in partial payment of a client's chiropractic bill with the intention of settling the fee dispute in full. In both cases the proffered settlement check was promptly endorsed and cashed, but Dr. D. claimed he did not receive these monies. The license of the collection firm employed by Dr. D. was later revoked for failing to turn over collected funds to clients.
Dr. D. initiated small claims cases against some of these clients to recoup his fees. Eventually, Dr. D. agreed to take remaining fees held in the law firm's trust account in satisfaction of these obligations. He obtained a judgment against the client in three matters.
On February 4, 2006, after Dr. D. had filed a series of grievances against Attorney..., the law firm and Attorney...(in his personal capacity) filed a civil action against Dr. D. seeking a declaratory judgment that all chiropractic fees due and owing to Dr. D. had been paid. Dr. D. did not respond to the complaint. On June 22, 2006, the MilwaukeeCounty
circuit court issued a default judgment ruling that if the law firm transferred amounts remaining in the law firm's trust account to Dr. D., this transfer would satisfy the law firm's obligations to Dr. D. in full. The judgment did not absolve clients of potential indebtedness to Dr. D.
The attorney and his partner were previously disciplined for a series of matters involving neglect and failure to communicate with clients. (Mike Frisch)
Not Moving Forward
From the web page of the Ohio Supreme Court:
The Supreme Court of Ohio has suspended the law license of [an] attorney...for one year, with the final six months of that term stayed on conditions, for neglecting the case of a personal injury client and making false statements to the client.
The Court adopted findings by the Board of Commissioners on Grievances & Discipline that after agreeing to represent a woman injured in a traffic accident and unsuccessfully seeking a settlement from the other driver’s insurer, [The attorney] took no further action in the case and ultimately allowed the statute of limitations for filing a lawsuit to expire, leaving the client with no legal remedy to recover for her damages. The board also found that despite her lack of progress in the case, [the attorney] repeatedly told the client that her legal matter was “moving forward,” and assured her that a financial settlement was imminent when neither statement was true.
The Court accepted the board’s findings that [the attorney], who has been registered as inactive since 2007, violated the state attorney discipline rules that prohibit neglect of an entrusted legal matter, conduct prejudicial to the administration of justice, conduct that adversely reflects on an attorney’s fitness to practice and conduct involving fraud, deceit, dishonesty or misrepresentation.
The court's decision is linked here. (Mike Frisch)
Computer Related Misconduct
A Tennessee lawyer received a public censure for misconduct that had taken place while she was an independant contractor working at a law firm on personal injury cases. Law firm management "discovered that [the attorney] had somehow obtained other employees' passwords, which gave [the attorney] access to information from the case management system, including client lists, files, and management reports." The problem persisted after several password changes. Prior to departure from the firm, the attorney had installed a file shredder system on her computer to shred her personal files. As a result, the firm was unable to use the computer.
There was no evidence that files were exported to an outside source. The firm, which had filed the complaint, "conceded that no files or information was exported." The attorney was found to have violated Rule 8.4(c).
A second attorney was censured for similar misconduct. Although the notices do not so specify, it appears to have happened at the same law firm. (Mike Frisch)
When In Doubt, Disclose
The District of Columbia Court of Appeals imposed a three year suspension of an attorney as reciprocal discipline for a suspension of that same length in Virginia. The misconduct involved a failure to disclose information in the Virginia bar admission questionnaire while waiving in from Pennsylvania. The applicant had been charged with murder in Jamaica while on leave from his duties as an infantry officer in the United States Marines. He was tried and convicted of the lesser offense of manslaughter and sentenced to two years imprisonment at hard labor.
He had failed to disclose the conviction despite a specific instruction on the application to the effect that, if there is any doubt, report. In the Virginia proceedings, he claimed that he had relied on advice from an unidentified Pennsylvania bar employee that he had no duty to report the outcome of a matter before a "kangaroo court." He also presented evidence that the police inspector who investigated the criminal matter had sought a bribe to drop the charges. As the court here states, the Virginia hearing tribunal was "[u]nderstandably not impressed by these representations..." The obligation is to report and give the admitting authorities the opportunity to decide the impact of the incident on character and fitness. (Mike Frisch)
July 22, 2009
Sotomayor's High Road, Writes Kelly Anders
[Our occasional guest-poster Kelly Lynn Anders, associate dean for students at Washburn Law and author of The Organized Lawyer, wrote a version of this op-ed for the Missouri Lawyers Media (subscr reqd), and we reprint it here with permission. Thanks, Kelly. -- Alan Childress]
The High Road to the High Court is the Best Route
Kelly Lynn Anders
Watching Sonia Sotomayor respond to questions during the U.S. Supreme Court confirmation hearings sheds light on two important issues that no economic conditions can trump or ignore – diversity and professionalism. Sotomayor has already demonstrated her skills as a jurist, and the confirmation process will test her abilities to surpass these additional hurdles to reach the High Court. In each instance, she will need to continue to take the high road.
Diversity – Just the sound of this word makes many people cringe and sigh. “Is this still necessary?” “What is there to talk about?” “Everyone has it tough now, so why should any group receive favorable treatment?” The legal profession is making a sincere effort to increase the percentage of minorities in its ranks, and there are many people who are or who will become the first ones in their departments who are of color. Should they be looked to as resources, or should their ethnicities be overlooked in favor of not noticing the differences? However, if we don’t acknowledge differences, doesn’t that dilute the point of diversity in the first place? In contrast, if we constantly highlight our differences, doesn’t that unfairly overshadow all of the other things that unify us? How do we maintain a balance among these interests?
Professionalism – What does it mean to be a legal professional in the 21st century? How should lawyers work with each other, and how are they viewed by society? Do image and personality matter as much as a “win” in the courtroom, or are they mutually exclusive? Where do “soft” skills, such as attire, protocol, and polish, mesh into what makes a great lawyer, judge, or, in this case, a U.S. Supreme Court Justice? Are expectations higher in these areas for women and minorities?
Despite how far we have come with the election of our current President, this confirmation process reflects the challenges that many women and minority lawyers face every day. Sotomayor has been compared with other Latinos, with the implication that these are her only, or primary, “peers.” She has been accused of having a hot temper, while demonstrating the calmest, non-combative demeanor in the room. She has been repeatedly asked about a quote that was most likely meshed within other language that would render its meaning moot if taken in its full and intended context, providing patient and detailed responses to every nuanced inquiry.
While Sotomayor’s appointment would render her the first Latina to become a U.S. Supreme Court Justice – a milestone not to be ignored – it is perhaps more important to remember that her confirmation would enhance the High Court with another professional who has shown the world that she is also a skilled traveler of the high road.
Cautionary Tale But No Violation Found
An interesting bar discipline matter from Louisiana involves charges of unauthorized practice against an attorney who was in good standing in New York but ineligible to practice in Louisiana due to a lapse in CLE obligations and non-payment of bar dues. The charges arose out of the representation of a single client. The attorney had participated by telephone from her New York office in a Louisiana mediation.
A hearing committee recommends that the charges be dismissed. The representation of the client "arose out of [the lawyer's] New York practice." The committee noted that Louisiana's Rule 5.5 on multijurisdictional practice permits lawyers not admitted there to handle matters that have incidental contacts with the state. Further, a non-lawyer could participate in the mediation. The committee calls the matter a "cautionary tale" and notes that the lawyer's "decisions raised the specter of unauthorized practice." (Mike Frisch)
A Matter Of Autonomy
A capital criminal conviction was reversed by the Delaware Supreme Court due to a conflict in trial strategy between the defendant and counsel. Counsel had offered incriminating evidence at the guilt/innocence phase of the trial and had argued that the defendant was guilty but mentally ill. The defendant had objected to this approach and made his concerns known to the trial judge. The court here concluded that "defense counsel's strategy infringed upon the defendant's personal and fundamental constitutional rights" to control the objectives of the representation.
The story of the trial is told in exhaustive detail in the 103 page majority opinion. The situation calls to mind the Kaczynski case. The disagreement over, in essence, the plea surfaced prior to jury selection and the trial court declined to address the problem or question the defendant regarding his concerns. The prosecutors questioned whether defense counsel's approach was proper and sought vigorously a court-conducted inquiry of the defendant. The trial court denied the motions of the prosecutors in that regard. The court here takes the trial court to task for its failure to protect the rights of the defendant. As a result, there was "complete chaos at trial."
A dissent focuses on the difficulties encountered by lawyers defending death penalty cases. The dissent expresses concern that the majority decision will have a negative impact on the willingness of lawyers to undertake such cases as well as their ability to conduct the best defense. The dissent concludes that defense counsel's approach here did not affect the justness of the result and would affirm. (Mike Frisch)
July 21, 2009
The Alaska Supreme Court rejected an attorney's argument that a proposed suspension was too severe and imposed a three year suspension with two years stayed. The attorney had neglected the affairs of several clients. He contended that the proceedings before the Disciplinary Board was "rife with substantive and procedural deficiencies" and that the arguments of Assistant Disciplinary Counsel amounted to "pervasive character assasination and vilification."
The Panel had looked to the length of the neglect as its "starting point" in its sanction recommendation, noting a "symmetry" between the period of neglect and the resulting suspension. The board adopted the panel's recommendation "without additional comment or analysis."
The court here agreed with the lawyer that "the 'symmetry' reasoning is ad hoc, and no precedent supports it." Nonetheless, the court adopted the board's proposed sanction. The court also rejected an array of due process contentions regarding the board's procedures. The arguments of Assistant Bar Counsel were not a diatribe; rather, the "presentation was relatively brief, contained no inflammatory or otherwise inappropriate remarks, and did not stray from the record." (MIke Frisch)
TaxProf SiteMeter Survey Ranks Blog As 30th or 27th, Up A Spot From Last Period
A follow-up to this blog's ranking earlier this year of 31st (visitors) and 28th (page views), the latest TaxProf survey places the blog at 30th and 27th among U.S. law professor blogs. Due thanks, sincerely, to our readers and commenters is found here. [Alan Childress]
If You Can't Say Something Nice...
Posted by Mike Frisch
An interesting post from my friend and former student Matthew Kaiser at The Kaiser Blog:
Last week the Sixth Circuit decided a case with stunningly bad conduct by a defense lawyer. The case is United States v. Herrera-Zuniga. In it, Richard Stroba of Grand Rapids, Michigan turned himself into a prosecutor against his own client.
Mr. Herrer-Zuniga was charged with entering the country illegally after having been previously deported subsequent to a felony conviction. He plead guilty in federal court in Michigan.
Instead of submitting a sentencing memorandum on behalf of his client, Mr. Stroba submitted a copy of a letter he had sent to Mr. Herrera-Zuniga. The letter is simply stunning. Here are some quotes from the Court’s opinion:
My duty now is to try to write a sentencing memorandum on your behalf. I knew this day was coming and I knew it would be a difficult task, but . . . I must admit that I am completely stymied (i.e., without a place to go). There is not one thing about your situation that lends itself to a positive thought, save that you have a good work history.
Wow, that’s quite a start. But wait, it gets worse . . .
You are clearly an alcoholic with either no ability or desire to quit drinking . . . . At some point either you will stop consuming alcohol on your own, or you will develop cirrhosis of the liver and you will die a slow, painful, horrible death. And then you will be done drinking for sure.
Does it seem to you that Mr. Stroba actually wants his client to die a slow, painful, horrible death? It seems that way to me. He continues,
I am sorry to be so blunt, but I have to honest with you, your case has left me without an expressible empathy. For this I am sorry because it leaves me almost unable to advocate on your behalf. (I say “almost” because as you are one of God’s creatures, any person can advocate for mercy or lenience premised upon your basic humanity. But that job is a tough one, made ever more so by your conduct.)
Mr. Stroba concludes by telling his client that he is “certainly at the bottom of society’s hierarchy.” I suspect that he didn’t need to actually come out and say that, I, at least, figured out that from the preceding discussion in his letter.
The Sixth Circuit “expressed concern” that Mr. Stroba’s advocacy on the government’s his client’s behalf was “professional malfeasance and, potentially, constitutionally ineffective assistance of counsel.” The Court also recommended that someone look into whether Mr. Stroba’s conduct violates the ethics rules applicable to Mr. Stroba.
This case made me incredibly angry when I read it. I have never had a client I felt I could not advocate for. Some clients I like more than others, but I don’t really feel that matters too much. Some clients present unique challenges. But a defense lawyer’s job at sentencing is to find the good, acknowledge the bad, and explain why the good deserves recognition. (for what it’s worth, the Court was able to determine that Mr. Herrera-Zuniga reentered the country to care for his sick daughter, a fact that is surely worth noting at sentencing)
There are, as I see it, two real problems with Mr. Stroba’s conduct. First, why does he think this is acceptable advocacy? Second, and equally fundamentally, why does he think this is an appropriate way to talk to a client? Can you imagine how Mr. Herrera-Zuniga felt, sitting in jail, when he got that letter from his lawyer.
Facing criminal charges, especially when you’ve been detained, is a lonely thing. Normally, you want a criminal defense lawyer who is in your corner, willing to fight for you, and explain things to you, and walk that very lonely road with you. Mr. Stroba not only left his client sitting alone at a crucial time in his life, but he kicked him as he walked away.
Lots of criminal defense lawyers do this kind of work for the wrong reason. They imagine that they’ll be only representing innocent clients, or that they’ll speak truth to power, or they’ll be saving lives. If a person goes into it with that expectation, realizing that’s not what the job is will be very frustrating. I suspect Mr. Stroba simply ought to find another line of work.
I think this case is instructive, though, for people who need to hire a lawyer as well. If a lawyer starts going south on you, or yells at you in an initial consultation, start to act on it immediately. The last thing you want is to get a letter like the one Mr. Stroba sent to his client.
Law Services Website Must Be Taken Down During Period Of Suspension
A District Committee of the Virginia State Bar has imposed a public reprimand with terms of an attorney who had continued to advertise his legal services on his website after he had been suspended for six months. When confronted about the situation by a bar investigator, the attorney "stated that he knew he had a website advertising his law practice, that he did not consider taking it down during his suspension, that he did not think about it, that he did not know how to take it down, but that he would look for the person who sold him the service to take the website down for the remainder of his suspension."
The terms of the sanction require the attorney to take the website down within 30 days. (Mike Frisch)
The Power Of Bar Counsel
An attorney was the subject of a bar investigation initiated as a result of an trust account overdraft. The attorney provided an explanation of the overdraft to Bar Counsel. Bar Counsel investigated the operation of the trust account and found a discrepancy. As a result, Bar Counsel issued a subpoena for the attorney's trust account records. The attorney moved to quash, which was denied without a hearing. The attorney then appealed.
The Maryland Court of Appeals rejected the attorney's claim that the subpoena was overbroad. The subpoena sought records for a two-year period that was "not remotely unreasonable." Bar Counsel is not obligated to prove an ethical violation as a condition precedent to the issuance of an investigative subpoena. (Mike Frisch)
Disbarment For Real Estate Fraud
The Maryland Court of Appeals has disbarred two attorneys as a result of "their involvement with a fraudulent, equity-stripping lease/buyback arrangement" for a husband and wife homeowners. One had conducted a closing where he utilized a false occupancy statement and signed a HUD form that misrepresented the manner in which settlement funds would be distributed. The other, who acted as the supervisor of the other lawyer and the title company, had violated fiduciary duties to distribute funds in a manner consistent with the settlement forms and misappropriated settlement proceeds. (Mike Frisch)