Friday, August 7, 2009
The New York Appellate Division for the Second Judicial Department has imposed a two-year suspension as reciprocal discipline as a result of that same suspension in Massachusetts. The court described the findings of misconduct of the Massachusetts court:
In January 2003 the respondent telephoned an insurance adjuster's supervisor and, without identifying himself personally, said that he was an officer of the court who overheard a judge say that he was appalled that the insurer had made only one offer to settle a particular claim that was the subject of an unfair settlement practice case on trial before the judge. The respondent related the judge as saying that the insurer was going to get "hammered." The respondent told the supervisor that the insurer should consider itself warned and advised settlement of the case at bar. The respondent had a similar case involving the same insurer. He telephoned the adjuster in his case the next day to say that the insurer would lose the case.
The insurer moved for a mistrial in the case and traced the telephone call to the respondent's law office. The respondent left a message on the judge's answering machine that he would attend the continued hearing on the motion for a mistrial because he wanted to testify that he had been misunderstood. The judge decided that he would allow the motion for a mistrial, cancel the hearing, and recuse himself from the case. The respondent left another message for the judge to the effect that the allegations against him were incredible and he wanted to straighten out the record.
The hearing committee found that the respondent intended to dissuade the judge from declaring a mistrial and fabricated information about the judge's impressions of the trial in an attempt to influence the insurer's decision in his pending case. The respondent was found to have engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation and conduct prejudicial to the administration of justice inasmuch as the matter ultimately resulted in a mistrial. The respondent's ex parte telephone calls to the judge and attempts to influence him were found to constitute violations of the Massachusetts Rules of Professional Conduct 3.5(a) and (b).
The second charge against the respondent emanated from his refusal in June 2004 to turn over, within a reasonable time after being discharged, the clients' files to successor counsel in a contingent fee case and his intemperate and vulgar conduct toward successor counsel.
The Louisiana Attorney Disciplinary Board found, contrary to a hearing committee's findings, that an attorney had engaged in commingling and two instances of conversion. As a result, the board rejected the proposed sanction of public censure and recommended a three-year suspension. The decision also addresses the rule with respect to providing financial assistance to a client.
The charges dealt with the lawyer's dealings with one particular personal injury client. The lawyer was accused of using the client as a "runner." The client made two undocumented loans to the lawyer, which were promptly repaid. The lawyer paid for the client's BMW repairs and also gave the client monthly payments of over $1,300. In the main, the hearing committee rejected the most serious charges regarding the lawyer-client dealings.
The board noted that the rule in Louisiana regarding advancing living expenses has a "long and tortuous history" caused by a disconnect between the text of the Rule and the "actual standard" developed in the case law. Also, the hearing committee cited a version of the rule that had not been adopted when the conduct took place. The board agreed with Disciplinary Counsel's argument that the rule was violated here because the obligation to repay the attorney was undocumented. The board concluded that its findings regarding the mishandling of escrowed funds merited a lengthy suspension. (Mike Frisch)
A Nebraska county judge was suspended for 120 days without pay for misconduct in three matters. The Nebraska Supreme Court affirmed findings that the judge had, in one matter, improperly involved himself in an ongoing criminal case against his nephew after the nephew had failed to appear for a court proceeding. The second matter involved ex parte contacts with a prosecutor. The third related to a profane and threatening message left on an attorney's answering machine when the judge thought that a matter should not have been scheduled in his court. (Mike Frisch)
The New York Appellate Division for the Second Judicial Department imposed a five-year suspension for the failure to promptly pay settlement proceeds in a wrongful death action and misappropriation of entrusted funds. The court considered the follwing in determining the appropriate sanction:
In determining an appropriate measure of discipline to impose, the Grievance Committee notes that the respondent has no prior disciplinary history. The respondent admitted at the hearing that he had been the subject of prior complaints which were dismissed or discontinued. Notwithstanding the respondent's arguments in defense of his conduct, it has been held that the ultimate responsibility for affixing reasonable legal fees rests with the Surrogate irrespective of the existence of a retainer agreement (see Matter of Piterniak, 38 AD3d 780, 781). In implementing his own assessments of the reasonable value of his services for that of the Surrogate, the respondent acted improperly. His argument that the stipulations signed by the Zwiebachs [the clients] constitute a novation in place of their old obligation, is unavailing. There is also in place an order finding that the respondent submitted a forged settlement agreement to his client and wrongfully withheld $75,000 from her for an extended period of time. Having failed to timely perfect an appeal from that order, the respondent is bound thereby.
This matter is complicated by the long-standing friendship between the Zwiebach and [the lawyer's] families. From December 1986 through the death of Dr. Zwiebach in 1991, the respondent's firm represented him in numerous matters involving the company created to run the X-ray business which Dr. Zwiebach had purchased. The firm's representation included matters related to the continual late payment of notes due for the purchase of the X-ray business, which led to the default notices and threats to call in the entire balance of the note due, as well as failures to pay school taxes and to provide proper insurance coverage as required under the agreement. During this same period, the respondent also represented Judith Zwiebach in various business ventures, including the sale of Gladstones Jewelry Castings, Inc., a business she had operated.
During this period, the respondent's firm received no fees from Dr. or Mrs. Zwiebach, in consideration of their financial difficulties. That situation was altered by Judith Zwiebach's receipt of more than $1.5 million in insurance proceeds and the wrongful death settlement.
Under the totality of circumstances, we find that the respondent has evinced serious misjudgment which warrants his suspension from practice for a period of five years.
Thursday, August 6, 2009
A District Of Columbia hearing committee has concluded that a conviction on plea of guilty to the crime of first degree assault involved moral turpitude on its facts. Disbarment is mandatory in D.C. for a moral turpitude conviction. A hearing was held because the Board on Professional Responsibility had concluded that the statutory elements of the conviction did not establish moral turpitude per se.
According to the plea proffer, the lawyer had come home angry about something relating to the Maryland or D.C. lottery. In an upstairs bathroom, he shot his wife in the head with a .32 caliber revolver. She survived. The attorney was sentenced to 25 years in prison. The bar discipline hearing was held in the Hagerstown Correctional Institute.
This link will take you to the bar web page. The case is Matter of Bingham, recommendation filed on July 17, 2009 with the Board on Professional Responsibility. The board in turn will make its recommendation to the Court of Appeals. (Mike Frisch)
The Pennsylvania Supreme Court approved a proposed public censure of an attorney for misconduct in ongoing litigation. Unbeknownst to the attorney, his client had provided forged documents and testified falsely at a deposition. The attorney failed to act for three months after learning of the client's fraud. The Disciplinary Board's recommendation noted that suspension or disbarment is appropriate when a lawyer actively participates in client fraud. Lesser sanction, including public censure, may be imposed for unknowingly abetting fraud and failure to act when discovering the client's bad behavior. The attorney had failed to correct pleadings that had relied on forged documents, but was remorseful and cooperative. (Mike Frisch)
Posted by Jeff Lipshaw
For the last month, I've been guest-blogging over at PrawfsBlawg, which I think has a slightly different demographic than we have over here. What follows is a cross-post (in large part) of a comment I made over there to some thoughtful remarks from Paul Horwitz on how early-career law professors ought to manage their ambitions in authorship, the coin of the realm, as it were, for professors. Paul's comments are constructive and measured, as he considers the possibility of writing to a golden mean somewhere between the too-ambitious and therefore unsuccessful "grand theory of everything" (i.e., the philosophy of "audace, toujour audace", and writing too small, which might brand you as a practitioner or "small thinker." My comment to that post follows here after the fold, because I think there are generalizations that apply to any career, as well as some commentary on the present measures of success in the legal academy.
The Minnesota Supreme Court imposed an indefinite two year suspension with the right to reapply after 120 days subject to probation if reinstated. The attorney was retained as successor counsel in a deportation matter. He filed a so-called Lozada motion alleging ineffective assistance on the part of prior counsel. At the time, such motions required a statement whether a bar complaint had been filed. The attorney had drafted but not filed a bar complaint. Nonetheless, he claimed to have done so in the motion and attached the draft complaint. He later did file the bar complaint.
The court affirmed findings below that the attorney had falsely represented that a bar complaint had been filed in the Lozada motion. The court accepted as aggravating factors the attorney's attitude (he did concede that his conduct was a "bad move" but the referee and court found that he had inappropriately minimized the seriousness of the misconduct) and his record of pror discipline. (Mike Frisch)
The Mississippi Supreme Court has amended its rules governing admission by reciprocity. An applicant is no longer required to certify that she intends to establish a "permanent office for the active practice of law" in Mississippi. The amended rule took effect on August 1, 2009. (Mike Frisch)
Wednesday, August 5, 2009
An interesting hearing committee report from Louisiana recommends that two lawyers be suspended for six months, all deferred, and that they attend a bar sponsored ethics seminar. The two lawyers shared office space and had jointly represented a criminal defendant charged with incestuous rape of his minor daughter. After one of the attorneys had "aggressively" cross examined the victim at a motions hearing, he met with the victim and had her execute three affidavits. The second lawyer had the victim sign the affidavits and notarized them himself. One affidavit purported to waive a no-contact order imposed on the defendant, the second asked that the charges be dismissed, and the third imposed a condition of confidentiality concerning the meeting.
Thereafter, the victim became uncooperative with the criminal prosecution. When subpoened to the trial, she contacted one of the accused lawyers. He arranged to have a third attorney advise her about her rights regarding testimony. She then began to cooperate and the defendant pleaded guilty to lesser charges.
The committee concluded:
...by creating the false impression in the mind of [the victim] that she was legally barred from ever discussing the meeting on penalty of an injunction and other "liquidated damages" and thereby causing a previously cooperative witness to become fearful and unwilling to cooperate with the prosecution, as she had previously done, [the accused attorneys] have violated Rule 3.4(a) and (f), Rule 4.1, Rule 4.3 and Rule 8.4(a), (c) and (d).
A greater sanction was not proposed because there was a lack of proof that the meeting violated a court order and "it cannot be said that the meeting itself was illegal or improper per se." (Mike Frisch)
An attorney who was involved in two alcohol-related traffic accidents is the subject of a proposed suspension of a year and a day, retroactive to the date of her interim suspension, pursuant to the recommendation of the Louisiana Attorney Disciplinary Board. The first accident took place in the parking lot of the Office of the Attorney General, where the lawyer had previously been employed. She promptly self-reported to the Chief Disciplinary Counsel and enrolled in a rehabilitation program. Unfortunately, after the treatment, she was involved in a second accident at the Belle of Baton Rouge Casino. (Mike Frisch)
The Illinois Administrator has filed an amended complaint charging an attorney with misconduct as a result of two sets of criminal charges. The underlying circumstances of the first conviction are described as follows:
The complaint indicates that the attorney was sentenced to terms of imprisonment in connection with the convictions in both matters. (Mike Frisch)
Tuesday, August 4, 2009
Posted by Alan Childress
The Lowering The Bar blog, in its post called Law Review Article Titles: Stop the Madness, groans at
LTB asks you to email them your favorite clunker. Jeff's titles are usually entertaining, though they sometimes require unwinding and occasionally put one on obscure-allusion alert. But my nomination? I really like the title of a colleague's study of what happens when a court declares someone dead after seven years--and he shows up fairly pissed that he can't get a brake tag or Blockbuster card anymore:
Jeanne L. Carriere, "THE RIGHTS OF THE LIVING DEAD: Absent Persons in the Civil Law," 50 Louisiana L. Rev. 901 (1990).
Actually his insurance/social security beneficiaries may be even more pissed that he showed up at all. Such implications are nicely explained in this blog, drawing on Jeanne's article and referencing Tom Hanks and Wilson in Cast Away. (Wilson never actually showed.) There are up to 100,000 "living dead" in the U.S. (or at least from it--I'd pick Crete), Jeanne points out, raising many live issues. If you want someone in that category to be "dead" faster (just four years), hope they are from Georgia or Minnesota.
The most famous evidence-law case involving The Disappeared is Mutual Life Ins. Co. of N.Y. v. Hillmon, 145 U.S. 285 (1892). The widow Hillmon wanted the insurance company to pay up for her maybe-dead husband John whose body apparently showed up in Crooked Creek, Colorado. But Mutual said the body was of a guy named Walters and wanted to prove it with a a letter from Iowa that Walters wrote to his sister, saying he was heading out to Crooked Creek. While the Supreme Court makes no mention of any inference of veracity to be drawn from the name of the town he chose to die in, it did create an exception to "hearsay" to allow the letter into evidence as some proof that the body in Crooked Creek was actually Walters' (or at least that Walters intended to go there). The verdict for the widow was, of course, reversed for new trial using the Walters letter (which, btw, many people now think was forged by Mutual).
An evidence-prof's aside: the Walters letter also said that he was going to Crooked Creek with John Hillmon, so maybe the body was Hillmon's after all! But many courts have since ruled that such a letter would not constitute proof that the Other Guy went there; it's inadmissible hearsay as to the one not writing the letter. It can't prove that Hillmon went, just Walters. If you don't see the difference (other than one makes the widow of course lose), you need to gouge out your common sense and go to law school. We get it right away, and charge you for explaining why. [Other courts would allow it--your basic law split.]
Of course some people would somehow not be satisfied until they see the long-form death certificate.
The U.S. Court of Appeals for the Fifth Circuit yesterday issued an opinion that should serve as a warning to lawyers involved in debt collection: be careful what stationery you use. Here is a nice summary (with permission) from the always-handy Fifth Circuit Civil News (its daily update by email), produced by Robert E. McKnight, Jr:
Gonzalez v. Kay, No. 08-20544 (5th Cir. Aug. 3, 2009) (Jolly, Prado and Southwick): Gonzalez sued Kay's law firm and Kay for sending him a debt collection letter that, Gonzalez alleged, deceptively represented the law firm's handling of the debt as a legal matter, rather than simply as a collection matter, in violation of the Fair Debt Collection Practices Act. The FDCPA prohibits "a debt collector sending a collection letter that is seemingly from an attorney." The district court [S.D. Tex.] dismissed on the defendants' FRCP 12(b)(6) motion, concluding that the letter, though on law firm letterhead, sufficiently informed Gonzalez that none of the firm's attorneys had yet become involved in the matter and that the firm was simply acting as a debt collection agency. Holding: Reversed and remanded. "Because the 'least sophisticated consumer' reading this letter might be deceived into thinking that a lawyer was involved in the debt collection ["[a] letter from a lawyer implies that the lawyer has become involved in the debt collection process, and the fear of a lawsuit is likely to intimidate most consumers"], the district court prematurely dismissed Gonzalez's complaint." Judge Jolly dissented.
And Judge Prado wrote the majority opinion, reversing the dismissal. [Alan Childress]
The New Jersey Appellate Division reversed a trial court determination and held that a title insurance company is liable to its insureds for defalcations by the closing attorney in a real estate transaction. A notice of disclaimer of an agency relationship between the company and the attorney was sent only to the attorney and could not operate to avoid liability on the part of the insurer. If the title company wishes to rely on a disclaimer of liability for an attorney's actions, it must take affirmative steps to provide such notice to its client, the insured.
The lawyer was a neighbor of the seller/victims. The theft had taken place prior to the retention of the title company. (Mike Frisch)
The South Carolina Supreme Court has temporarily suspended the former Clerk of the Beaufort County Clerk of Court who has been indicted on charges of embezzlement of public funds. The Beaufort Tribune reports:
According to the indictments [the former clerk] is accused of
- Taking funds from the circuit court’s fines and fees account to pay for life insurance policies on members of her family;
- Taking funds from the clerk of court’s bondsmen account to pay for improvements to her family’s house at Pawley’s Island SC;
- Committing acts of “habitual negligence, fraud and/or corruption while acting in an official capacity as a public official”.
The total amount of the funds allegedly embezzled is $33,283.52.
[The former clerk] resigned today from her office as Beaufort County clerk of court, according to the South Carolina governor’s office. As an elected official, [she] was required to submit her resignation to the governor, Mark Sanford.
A Nebraska attorney was suspended for 120 days for misconduct in connection with his representation of his paralegal (now associate) on charges of operating a motor vehicle without a valid registration and proper proof of insurance. The attorney wrote a letter to the prosecutor that said that the newly-elected county attorney was in violation of the same law, enclosed a draft of a motion to appoint a special prosecutor and concluded:
Obviously, these motions are only proposed. Can't you dismiss [this case]? Our lips, of course, are forever sealed if [the paralegal's] case gets dismissed.
The attorney sent a second letter of similar import with a proposed motion to dismiss for selective prosecution and later said that he "was trying to inject a little humor into this [situation]." The prosecutors did not get the joke and moved (successfully) for the appointment of a special prosecutor.
Disciplinary charges were brought and sustained by the Nebraska Supreme Court. The court reasoned that the first letter exceeded the bounds of zealous advocacy. The lawyer "offered to keep mum about what he believed to be illegal conduct by the county attorney in exchange for the dismissal of charges...a conditional threat to disclose the county attorney's alleged violation. This a lawyer cannot do."
The court rejected the "I was just joking" defense:
[his] purported "joke" resulted in the appointment of a special prosecutor, consistent with the motion [he] threatened to file. Perhaps [he] did not actually intend to file any of the motions he prepared. But a reasonable person in [the prosecutor's] position could not help but take [his] threats seriously. No one- not the county attorney or the Counsel for Discipline or the referee or the members of this court-has believed [his] claim that he was only joking.
The attorney had been disciplined on two prior occasions. (Mike Frisch)
Monday, August 3, 2009
...I'm just saying. And what is Liam Neeson trying to hide???
My father, who died two months ago today and will be missed greatly, never talked about World War II. He could not watch Saving Private Ryan. I was aware through relatives that part of his duties, for the Army Air Corps, was to clean up the concentration camps after Germany surrendered. The only hint I got of that, from him, was one day when we were watching some TV show and some Holocaust denier said it never happened. My dad told the TV, words he never used at any other time in my hearing, "Bullshit."
The Holocaust museum shooter, James von Brunn, had a website with two huge screed themes: the Holocaust is a lie, and Obama has never produced his "real" birth certificate. Said the NY Daily News, "It was unclear if something specific triggered his museum rampage - but the attack followed Obama's denunciation of Holocaust deniers."
Sometimes there are simply not two sides to facts. The Holocaust happened, and Obama is American. That some people cannot see the obvious intellectual connection between denial of those two realities is really sad. And for people like von Brunn, it is not just analogy. The overlap is 100%.
And in related news, or at least countervailing internet rumor, someone has reportedly filed a 30-page ethics complaint with the California bar against the birther attorney [/dentist/real estate agent] Orly Taitz. As one commenter to a blog on that said, "If filing obviously forged evidence just to get in "on the record" somewhere to lend it credibility, calling for violent overthrow of the government and soliciting members of the armed forces to participate in it etc. don't get you disbarred, WHAT EVER COULD?!?! How can a lawyer (or a dentist) get disbarred?" Readers of our blog can answer that last one: "not paying your student loans." And the commenter did not mention all the more technical violations alleged in the complaint, such as confronting two U.S. Supreme Court justices ex parte. For all you recent bar takers worried about your results, keep in mind that she passed one. Anyway, this is being reported, incorrectly I think, as if the California bar itself has filed a complaint against her, but I have no evidence of that. (And I doubt it given the way the petition is worded. And this site agrees and links its PDF.) On the other hand, maybe she needs to prove that did not happen by producing a signed and certified copy of an official form of some long variety, which disproves the opposite of it, preferably one with tiny footprints on it.
Finally, here is a site to make your own fake Kenyan birth certificate, with a template helpfully provided. (I am looking forward to receiving emails promising me 250,000 pounds if I help smuggle the true one out of the continent.) But I have already made one for Jeff. One can only hope that his new citizenship will improve his long distance running.
From the California Bar Journal:
[An attorney] was suspended for 18 months, stayed, placed on two years of probation with a 45-day actual suspension and was ordered to take the MPRE within one year. The order took effect Jan. 23, 2009.
[The attorney] stipulated that as a juror in a felony trial, he failed to maintain respect due to the courts by not disclosing that he is an attorney and he improperly posted comments about the trial on his blog.
[He] was impaneled on a jury hearing a trial in which the defendant faced five felony burglary charges. He had closed his law practice prior to the beginning of the trial and worked for a wireless communication technology firm. He did not disclose during voir dire that he was an attorney.
The judge cautioned jurors not to discuss the case both in writing and orally. Nonetheless, [he] posted an entry on his blog that identified the crimes, the first name of the defendant and the name of the judge, whom he described as “a stern, attentive woman with thin red hair and long, spidery fingers that as a grandkid you probably wouldn’t want snapped at you.”
He also noted, “Nowhere do I recall the jury instructions mandating I can’t post comments in my blog about the trial. (Ha. Sorry, will do.) So, being careful to not prejudice the rights of the defendant — a stout, unhappy man by the first name of Donald …”
[His] action resulted in the court of appeal vacating the judgment in the case and remanding it back to the trial court.
In mitigation, he cooperated with the bar’s investigation and he had no prior discipline record.
A New York Family Court judge has been admonished for two instances of misconduct. One involved his attempts to force a victim of domestic violence to reveal her shelter address on threat of contempt. The judge became increasingly nasty and aggressive as the lawyer and her supervisor resisted the order. He then held the lawyer in contempt and imposed a $1,000 fine.
The second matter involved an ex parte visit to a hospital to meet with the non-party subject of a custody dispute without notice to the litigants or their counsel. (Mike Frisch)