August 14, 2009
An Arkansas attorney was cautioned for filing a civil case in a California court. The attorney is not admitted in California. The pleading had the name of a California lawyer on it; unfortunately, that lawyer did not have an active license at the time. The case was dismissed. The attorney had failed to render competent services, failed to adequately communicate with the client and engaged in the unauthorized practice of law. (Mike Frisch)
Court Imposes Greater Sanction Than Board Had Recommended
The Pennsylvania Supreme Court rejected a proposed six-month suspension of the Disciplinary Board in favor of a one year and one day suspension that a dissenting board member had recommended. The attorney had entered practice in 1999 after 20 years as a state trooper. He had previously been informally admonished.
The client matter that led to discipline involved failure to respond to the opposing party's insurer resulting in missing a statute of limitations and making a series of misrepresentations to his clients, successor counsel and the insurance company in a personal injury matter. He also continued to deal with the insurance company after the clients had discharged him. His claim that he was unaware that he was discharged was rejected as incredible. (Mike Frisch)
Non-Cooperation Increases Sanction
The Pennsylvania Supreme Court adopted a recommendation of its Disciplinary Board to suspend an attorney for a year and a day. The attorney had failed to perform legal services for two clients, converted an advance fee(which he eventially repaid), and had been convicted of alcohol-related driving offenses. He had failed to report the convictions and had not participated in the bar proceedings, which the board treated as an aggravating factor. (Mike Frisch)
Third-Party Liability Of Lawyer As Escrow Agent
The South Carolina Supreme Court upheld a court of appeals decision that reversed a trial court grant of summary judgment on behalf of an attorney who had been sued by a non-client for alleged violation of escrow obligations. The court held:
Weinberg [the attorney] argues that the court of appeals erred in reversing the trial court’s grant of summary judgment on the negligence claim. We disagree.
In a negligence action, a plaintiff must show that (1) the defendant owes a duty of care to the plaintiff, (2) the defendant breached the duty by a negligent act or omission, (3) the defendant’s breach was the actual and proximate cause of the plaintiff’s injury, and (4) the plaintiff suffered an injury or damages.
Weinberg contends that allowing a cause of action against an attorney under these circumstances will intrude upon the attorney/client relationship and greatly hinder an attorney’s ability to represent his client. In our view, Weinberg’s argument misses the mark. Weinberg acted as the escrow agent and owed a fiduciary duty to Moore by virtue of this role. Therefore, it makes no difference that Weinberg was Wheeler’s lawyer and represented him in other matters. Under the facts of this case, the duty arises from an attorney’s role as an escrow agent and is independent of an attorney’s status as a lawyer and distinct from duties that arise out of the attorney/client relationship.
Furthermore, we hold that Moore presented evidence that Weinberg’s performance fell below the standard of care. In addition to submitting an affidavit from an attorney stating that Weinberg breached the standard of care, Weinberg essentially admitted that he was negligent in failing to disburse the funds in accordance with the agreement by testifying that he simply overlooked the terms of the agreement.
Accordingly, we hold that the trial court erred in granting Weinberg’s motion for summary judgment on the negligence claim...
Weinberg argues that the court of appeals erred in reversing the trial court’s grant of summary judgment on the conversion claim. We disagree.
Conversion is defined as the unauthorized assumption and exercise of the right of ownership over goods or personal chattels belonging to another to the exclusion of the owner’s rights. Money may be the subject of conversion when it is capable of being identified and there may be conversion of determinate sums even though the specific coins and bills are not identified.
Moore alleged in the complaint that he owned an interest in the proceeds from the litigation pursuant to the assignment, that Weinberg was aware of his interest in the proceeds, and that Weinberg wrongfully disbursed those proceeds. Viewing the evidence in a light most favorable to Moore, a genuine issue of material fact exists as to the conversion claim, and the court of appeals therefore correctly reversed the trial court’s grant of summary judgment. (citations omitted)
An attorney who had engaged in misconduct that included misappropriation of entrusted funds was suspended for one year by the New York Appellate Division for the Second Judicial Department. The court looked to the following mitigating factors:
August 13, 2009
The New York Appellate Division for the Third Judicial Department denied an application for admission of an attorney who was admitted on conditions in New Jersey. The applicant was admitted in New Jersey in January 2007 on conditions that he remain abstinent from all intoxicating substances, continue therapy, arttend at lease three AA meetings a week, not engage in solo practice unless supervised and certify compliance with the conditions. The conditions are in effect for three years.
The court here will consider admission when the applicant is admitted unconditionally in New Jersey. (Mike Frisch)
Suspension For Chat Room Conversation
An attorney who was admitted to practice in 2007 was suspended indefinitely with the right to seek reinstatement after one year as a result of a felony conviction for criminal solicitation of a minor over the internet. The offense will be reduced to a misdemeanor if he successfuly completes probation in the criminal case.
The Minnesota Supreme Court did not adopt a six-month suspension recommendation of a referee. The court found that the attorney had not established the elements of mitigation based on a psychological disorder.
The attorney had entered a chat room and engaged in a sexually-explicit conversation with a police officer posing as a 14 year old female. At the disciplinary hearing, he testified that he was a victim of two incidents of sexual abuse as a child and had participated in individual and group therapy through a religious organization. (Mike Frisch)
The Washington Post reports that a Maryland circuit court judge is under investigation on an (apparently admitted) charge that he let the air out of the tires of a car parked near the courthouse. The judge is quoted as saying to the chief administrative judge that the matter was not a "big deal." Further:
Nally [The judge] told [another paper] that someone had repeatedly parked in a restricted zone and that he had left notes for the driver. Letting the air out of a tire was less inconvenient to the driver than having the car towed, Nalley said.
The owner of the Toyota, Jean Washington, said Wednesday that she had not received a note or a verbal warning to stay away from the parking area where she left her car Monday.
"The only warning I got was when he flattened my tire," Washington said.
Washington, 51, works part time at the courthouse as part of an evening cleaning crew. Until Monday, she said, she had parked in the same area without any trouble. There is a sign notifying drivers that the area is a restricted parking zone and that motorists are required to have a permit between 8 a.m. and 6 p.m. There are no signs or markings indicating that spaces are reserved for Nalley or anyone else.
Washington said that she parked at 3:30 p.m. Monday and was told by a sheriff's deputy about 15 minutes later that Nalley was deflating one of her tires.
Washington said she did not have a permit to park in the area and would not have done so if she had been told she was not supposed to. Washington said she chose the spot because it is close to the courthouse and, because her work shift typically ends at 8:30 p.m., she doesn't like to walk to another parking lot in the dark.
Washington said Nalley should have called police or had her car towed rather than deflate the tire.
"If my car had been towed, that would have been my responsibility," Washington said. "If I had been ticketed, that would have been my responsibility."
The District of Columbia Court of Appeals declined to impose disbarment in a reciprocal discipline matter from Maryland, in which that sanction was imposed. The court followed a recommendation from its Board on Professional Responsibility to suspend the lawyer for 18 months with automatic reinstatement. The court notes that, unlike Maryland, it does not follow a presumption favoring disbarment for serious dishonesty and discusses the extensive D.C. case law in which dishonest conduct has resulted in relatively light sanctions. The case descriptions at page 8 of the court's opinion underscore the point.
Thus, a lawyer disbarred in Maryland will be able to transfer his practice to the District of Columbia after serving his time without any required showing of rehabilitation or present fitness. Because the lawyer was subject to an order of interim suspension in this matter, he is presently eligible to practice as a result of this decision. Let the clients beware.
Oh, the court did order the attorney to complete a CLE ethics course within six months. Hopefully, he will learn that lying to a client and forging court documents is not professionally responsible behavior. Some of us learned that in kindergarden. (Mike Frisch)
August 12, 2009
An Illinois hearing board has recommended a three-year suspension with the last 19 months stayed, followed by 24 months probation with required treatment for anger management based on its findings in connection with the following charges:
Count I alleged that in February 2008, after receiving unfavorable rulings from a Circuit Court Judge, the Respondent participated in a conference call with the judge and another attorney. During the conference call the Respondent stated to the judge "you are a narcissistic, maniacal, mental case" and "you should not be on the bench." A few days later, the Respondent sent the judge a letter, in which the Respondent said "I must bluntly state that you appear to have serious mental issues involving extreme narcissism and illusions of grandiosity which effectively interferes with your ability to act as a judge."
Count II alleged that in 1997 the Respondent, while representing a client at an administrative hearing with the Illinois Department of Children and Family Services, made several inappropriate comments to the Administrative Law Judge. The Respondent’s comments included saying "this is a kangaroo court;" referring to opposing counsel as the judge’s "fellow employee;" stating the judge was "an advocate and adversary to my position in everything that’s done here;" saying he would be "embarrassed to have to take such jobs [as Administrative Law Judge];" and stating that the proceeding was "no more a fair hearing than they had in Russia when they were operating under the Soviet system."
Count III alleged that in 2004, the Respondent stated to another attorney in a courtroom that the attorney was "unethical" and "you must be from a Jewish firm."
The hearing board majority called the misconduct serious, noting mitigating and aggravating factors. On the plus side was no prior discipline and favorable character testimony from his secretary. On the minus side was his attitude--not sorry and accusing the hearing board of being selected by his opponents.
A dissent favored a longer suspension:
I concur with the majority’s findings of misconduct and with most of what is stated in the Recommendation Section of the Hearing Board Report. However, I respectfully disagree with the sanction recommended by the majority. I believe that, in light of the aggravation discussed below, a suspension until further order of the Court is warranted and that the Respondent should be required to serve an actual suspension of 12 months before the probation commences.
The Respondent’s misconduct demonstrated a lack of respect for the legal system, the disciplinary system, and other members of the legal profession by making insulting and offensive comments to a Circuit Court Judge, on two occasions, and to an Administrative Law Judge throughout the course of an administrative hearing, without any legitimate reason for making such comments. He also made insulting and offensive remarks to another attorney by accusing the attorney of being unethical and then adding "you must be from a Jewish law firm."
While the Respondent’s misconduct itself is serious, more worrisome to me is the fact that the Respondent failed to recognize that he did anything wrong and failed to show any remorse or repentance for his actions. As pointed out by the majority, the Supreme Court has voiced concern that the failure of an attorney to recognize, understand or show remorse for his or her misconduct makes it more likely that the attorney will repeat the misconduct in the future.
Permissible Fee-Sharing Agreement
The New York Appellate Division for the Second Judicial Department affirmed a trial court damage award in a matter involving the alleged breach of a fee-sharing agreement between attorneys:
"It has long been understood that in disputes among attorneys over the enforcement of fee-sharing agreements the courts will not inquire into the precise worth of the services performed by the parties as long as each party actually contributed to the legal work and there is no claim that either refused to contribute more substantially" (Benjamin v Koeppel, 85 NY2d 549, 556 [internal quotation marks omitted]).
As this case was tried without a jury, this Court's authority is as broad as that of the trial court, and this Court "may render the judgment it finds warranted by the facts, taking into account in a close case the fact that the trial judge had the advantage of seeing the witnesses" (Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [internal quotation marks omitted]). Since the evidence revealed that the client consented to the fee-sharing agreement and the referring attorney, the plaintiff Weinstein, Chayt & Chase, P.C. (hereinafter WCC), performed some of the work, and there was no claim that the referring attorney refused to contribute more substantially, the Supreme Court properly found that the referring attorney was entitled to enforcement of the terms of the agreement (see Benjamin v Koeppel, 85 NY2d at 556).
Furthermore, viewing the evidence in the light most favorable to WCC (see Jacobs v RJAK Enters., 226 AD2d 679), legally sufficient evidence was presented from which the Supreme Court could rationally conclude that the parties entered into an enforceable fee-sharing agreement pursuant to Code of Professional Responsibility DR 2-107(a) (22 NYCRR 1200.12[a]; see Benjamin v Koeppel, 85 NY2d at 556; Cohen v Hallmark Cards, 45 NY2d 493, 499). We note that since the conduct at issue occurred prior to the effective date of the New York Rules of Professional Conduct, this matter is not governed thereby.
Indiana Law Launches Center On Global Legal Profession
Our own Bill Henderson is making news:
Indiana University Maurer School of Law Dean Lauren Robel has announced the launch of the school's new Center on the Global Legal Profession. Based at IU Bloomington, the center will focus on the unprecedented challenges lawyers are facing around the world and develop research and training materials to assist current and future attorneys in their understanding of international legal systems.
The center is directed by Professor William Henderson, who will work closely with fellow law professors Jayanth Krishnan and Ken Dau-Schmidt, and Ethan Michelson, an IU sociologist and the first social scientist to conduct rigorous empirical research on the Chinese legal profession.
Its launch was announced Saturday in New Delhi, India, where a conference on how globalization is affecting the practice of law and legal education was co-sponsored by the IU Maurer School of Law and the Jindal Global Law School.
The full announcement is linked here. (Mike Frisch)
"Let No One Mistake..."
An Oregon Trial Panel imposed a public reprimand on an attorney convicted of public indecency. The attorney had driven around a mall while masturbating. He was observed and reported by a mall employee and identified through security cameras.
The panel took pains to explain its decision regarding sanction:
The conduct of the Accused need not be described here. We need only emphasize the obvious: It was shameful, contemptible and hurtful. A young woman in a very public place became the random victim of the Accused's shocking behavior. We do not know whether other women or children noticed [his] disgusting behavior as he drove around the parking lot of a major urban shopping center at mid-day. We do know that his behavior has caused needless hurt and humiliation to his family, shocked his friends, and saddened his colleagues. It is behavior offensive to social values and expectations, not just of lawyers but of responsible and upright citizens, generally.
Despite the fact that this Trial Panel has conscientiously applied the ABA Standards for Sanction in light of Oregon case law, we know that there are many in the general public who will be outraged that the only sanction the Accused receives from the Bar is a public reprimand. In this, too, the Accused's conduct has brought disrepute on his profession.
Let no one mistake a public reprimand as condoning such behavior. Far from it, we have faith that any repetition...will be regarded as intentional and willful disrespect for the law and contempt for his profession, warranting sanctions at least as heavy as those imposed in [cases imposing suspension].
August 11, 2009
Allegations Sufficient To Sustain Malpractice Claim
The New York Appellate Division for the First Judicial Department concluded that a complaint alleging legal malpractice had been improperly dismissed by the trial court. The allegations related to a settlement in a divorce action. The court held:
Here, not only are the allegations of the giving of incorrect advice sufficient and nonconclusory, as noted above, the documentary evidence provides significant support for plaintiff's claim. It clearly establishes that the overwhelming majority of plaintiff's funds, including the amount necessary to satisfy the obligation to his wife, were not, as characterized by the stipulation, "immediately available." Plaintiff alleges that he did not know that under the applicable tax laws the necessary funds were not "immediately available" — we must accept that allegation as true (see Leon v Martinez, 84 NY2d 83, 87 ) —- and that a reasonably competent matrimonial attorney who read the stipulation would not have advised him to sign it. Given these allegations, the stipulation may constitute evidence of defendants' negligence and does not constitute a defense to the malpractice claim.
Furthermore, defendants' assertion that plaintiff's alleged damages are too speculative lacks merit. To survive a preanswer motion to dismiss... "a pleading need only state allegations from which damages attributable to the defendant's conduct may reasonably be inferred." At this early stage of the proceedings, plaintiff " is not obliged to show . . . that [he] actually sustained damages,'" but only that "damages attributable to [defendants' conduct] might be reasonably inferred." The complaint sufficiently asserts that "but for" defendants' faulty advice that plaintiff sign the stipulation, he would not have incurred the tax liability that resulted from the withdrawal of funds from his retirement account. We do not regard as pure speculation plaintiff's contention that in no event would he have incurred that liability if the settlement had not been reached.(citations omitted)
Board May Review Portions Of Credentialing File
The Massachusetts Supreme Judicial Court remanded a case involving possible misconduct by a physician. The issue related to access to the physician's credentialing file, which the Board of Registration in Medicine had sought but the trial court had held was protected by privilege.
The relevant facts:
Hallmark Health Corporation is the parent of Hallmark System, Inc., a licensed hospital facility whose "campuses" include the former Melrose-Wakefield and Lawrence Memorial Hospitals (collectively, Hallmark). The information sought from Hallmark by the board is located in Dr. Doe's credentialing files, which Hallmark maintains pursuant to the requirement that all hospitals have a "qualified patient care assessment program" (QPCAP) to address, among other things, the credentialing of medical staff members. Under Hallmark's medical staff credentialing policy, physicians seeking clinical privileges at Hallmark must apply for an initial appointment and must apply for reappointment at periodic intervals no greater than two years thereafter. An applicant for an initial appointment must provide, among other things, information about prior education, training, experience, and licensure, as well as potentially negative information, including whether the applicant has ever been a criminal defendant, lost a professional license, had clinical privileges withdrawn, or been involved in any professional misconduct proceedings. For reappointment, an applicant must provide, among other things, information about compliance with Hallmark's rules, continuing qualifications, pending malpractice challenges or challenges to licensure, and any limitation, reduction, or loss of clinical privileges. In addition to information supplied by the physician, any incident reports or complaints involving the particular physician become part of the physician's credentialing file. (citations omitted)
The court held:
We remand the case to the Superior Court for an individualized consideration whether each of the documents listed on Hallmark's privilege log is protected by either § 204 (a ) or § 205 (b ), bearing in mind that the burden is on Hallmark to establish that each document is privileged.
The case is Board of Registration in Medicine v. Hallmark Health Corporation, decided today. (Mike Frisch)
Lawyer Sanctioned For Misleading Internet Ad
The web page of the Massachusetts Board of Bar Overseers reports on a recent informal admonition. The identity of the attorney is not disclosed in such circumstances:
ADMONITION NO. 09-12
Holding Out as a Specialist [Mass. R. Prof. C. 7.4(a)]
The respondent was admitted to practice in New York in 1991, and in Massachusetts in 2004. The respondent was employed as an attorney in New York, Beijing and Hong Kong from 1991 to 2002, but did not practice in the area of immigration law.
After moving to Massachusetts in 2004, the respondent opened his own law firm. Sometime thereafter, the respondent created a website for the purpose of advertising his legal services, and caused it to be disseminated on the internet. On the website, the respondent represented that he provided “professional legal services to American and international clients with respect to corporate and commercial transactions, small business matters and immigration law matters.” As of April, 2005, the respondent had represented only a handful of clients in immigration matters and did not have the experience of a specialist in the field of immigration law. The respondent had, however, attended continuing legal education courses on immigration law matters, and conducted self-study.
In April 2005, a Canadian citizen, who was residing and working in the United States as a dentist, learned of the respondent and his immigration practice through his website. The dentist was in the United States on a TN (nonimmigrant NAFTA professional) visa that was due to expire on January 15, 2006. The dentist was contemplating becoming the sole owner of the dental practice for which he worked. He engaged the respondent to advise him about his options for obtaining a visa that would allow him to do so.
The respondent conducted research on the relevant legal issues, but did not consult with a more experienced immigration law attorney before providing advice to the client. As a result of his lack of expertise, the respondent gave the client the erroneous advice to apply for a B-1 Business Visitor visa. The respondent advised the client that he could not engage in any unauthorized employment, but failed to advise the client that he could not continue to treat patients after his TN visa expired and while his B-1 application was pending. The respondent should have advised the client that a non-immigrant may not engage in productive work in the United States without a visa allowing him to do so.
As a result of the respondent’s failure to give the client adequate advice, the client illegally continued to treat patients after his visa expired. The respondent, on behalf of the client, subsequently applied for and obtained an E-2 visa that allowed the client to enter the U.S. to direct the operation of an enterprise in which he has invested.
By holding himself out as a specialist in immigration law, the respondent made a misleading statement about the extent of his expertise in that field, in violation of Mass. R. Prof. C. 7.4(a).
The respondent had no prior history of discipline. He received an admonition for his conduct and has removed immigration law from his website and other public communications under his control as a field of law in which he practices.
The District of Columbia Board on Professional Responsibility has recommended an 18 month suspension with fitness in review of a hearing committee's findings in five consolidated complaints. The hearing committee had proposed a suspension of four months. The attorney had a prior disciplinary history and had offered similar excuses for past neglects.
Of particular interest is the board's discussion at pages 20-23 of the rule that prohibits conduct that "seriously interferes with the administration of justice." The attorney had been ordered to honor a fee arbitration award to a former client. He promised to do do. He did not honor the promise.
The board concludes that there was no interference with the administration of justice because the arbitration was over when the conduct took place. As the arbitration panel had no further authority to act, the administration of justice was not prejudiced. To me, this is flat wrong. Failure to pay an arbitration award or honor a promise to do so clearly has a direct and substantial impact on the bar's process and thus violates the rule.
The board's longstanding antipathy to the rule led to the court's three-part test in In re Hopkins, 677 A.2d 55 (D.C.1996). The conduct must be improper, bear directly on an identifiable case or tribunal and taint the administration of justice in more than a de minimus way. I think that the conduct meets the test and the fact that the tribunal no longer had jurisdiction is irrelevant. the board takes pains to distinguish obedience to its own orders from the bar's arbitration award process.
Note that the D.C. version of Rule 8.4(d) prohibits conduct that "seriously interferes" with the administration of justice rather than "is prejudicial" to it.
The link that will take you to the board's decision is here. The case is In re Karl Carter. (Mike Frisch)
August 10, 2009
Disbarment For Unauthorized Practice While SuspendedA Colorado attorney was disbarred for engaging in unauthorized practice in violation of an order of suspension. His claims that he did not understand that his actions in advising one client and drafting a document for another client were the practice of law "ring hollow" in light of his prior disciplinary history, which included a three-year suspension for substantially similar conduct. (Mike Frisch)
A North Carolina attorney admitted to practice in 1997 has been charged in a complaint with misconduct that allegedly took place when he went to a county clerk's office to file motions. The complaint alleges that the attorney began to argue his case at the front counter and was "rude, belligerent and demanding." He continued to "rant and rave" at the court clerk. The clerk accepted the motions and set up a conference call with the involved attorneys.
According to the complaint, the behavior persisted during the conference call. A hearing was then held before the clerk during which the lawyer "badgered the court and witnesses. [He] would jump from his seat, fling his hands, point fingers and speak out of turn." He sought a transcript of the hearing and told a deputy clerk that "my life's goal is to have your boss' job." He then filed a motion to have the clerk held in contempt.
The charges allege that the contempt motion against the clerk was frivolous. The rude behavior resulted in a charge of "undignified and discouteous conduct that is degrading to a tribunal." The hearing is scheduled for August 21.
I am impressed with the detailed information available concerning pending complaints on the North Carolina State Bar web page. (Mike Frisch)
The Tennessee Judicial Ethics Advisory Committee has issued an opinion regarding situations that may arise when a trial court presides over a class action case in which the parties agree pursuant to the cy pres doctrine that a portion of the settlement be donated to a charitible organization;
We conclude that a trial court's decision with respect to the recipient(s) of unclaimed funds in a class action should not implicate Canons 1 and 2 of the Code of Judicial Conduct so long as the trial court follows the appropriate principles of cy pres distribution. Since the function of the court...is to approve or disapprove the recipient(s) of the residual funds, if any, the court should refer the parties to Rule 23.08 and then decide, after the parties have selected the recipient(s) of the residual funds, wether the recipient(s) are acceptable to the court.
The trial court may not play any role in the selection process as "doing so could be looked upon as showing favoritism to a particular group or charity." (Mike Frisch)