August 28, 2009
First Of Many?
For those who have wondered whether any lawyer would be sanctioned for Bush era Department of Justice abuses, the answer is yes. The first (to my knowledge) such sanction is an informal admonition issued to former department spokesman John A. Nowacki by the District of Columbia Office of Bar Counsel. The attorney did not dispute findings of the DOJ Inspector General and Office of Professional Responsibility that he had drafted a proposed media release that he knew was inaccurate and concealed information from department investigators concerning Monica Goodling's political litmus hiring practices. The findings may be found at pages 125-28 of the above-linked report.
Bar Counsel concluded that the conduct violated the prohibition against dishonesty, fraud, deceit or misrepresentation. The rules governing bar discipline in the District of Columbia grant Bar Counsel the authority to issue an informal admonition on approval of a hearing committee lawyer-member without any hearing.
The informal admonition is a public sanction that does not involve any other interruption of practice. An attorney may reject the admonition and be subject to charges that, if sustained, could result in a more severe sanction. The informal admonition may be found by going to this link and entering the name of the attorney. (Mike Frisch)
See You In 2017An attorney who was disbarred in 1997 and barred from seeking reinstatement for 20 years has sought reinstatement and filed pleadings attacking the order imposing discipline. The Florida Supreme Court has had enough. The court found him ineligible for reinstatement until 2017, concluded that his numerous filings were frivolous, and ordered that he cease filing pleadings relating to his disbarment unless signed by a member of the Florida Bar: "[The attorney] fails to comprehend that the Court has disposed of his cases." (Mike Frisch)
No Violation, No Reasoning
A three-judge circuit court dismissed with prejudice bar charges brought against the chief of the capital crimes unit of the Virginia Office of the Attorney General. The ABA Journal had previously reported the charges:
For years, the state attorney general's office in Virginia has distributed letters to former jurors in capital cases, cautioning them against talking to defense lawyers working on appeals.
And the Virginia State Bar wants to put a stop to the letters.
The form letter, which is supplied to local prosecutors, advises jurors that they may be contacted by someone representing the convicted killer who "may try to give the false impression that they are working on behalf" of the prosecution or the courts, the Washington Post reports.
The state bar, which considers the letter to be "offensive," has launched disciplinary proceedings to stop the state from sending out the letter. This is the second such attempt since the letter first became public in 2004.
Defending the letter in her response to the bar's complaint against her, Katherine P. Baldwin Burnett, the assistant attorney general who handles the capital litigation unit, wrote that the juror letter isn't intended "to prevent any juror from speaking to anyone, but simply to inform the juror so he or she would understand the situation accurately."
The Post reports that the letter instructs jurors to demand official identification and further instructs jurors to contact the prosecutor for verification.
The Post notes that it's not clear how many prosecutors send the letter. But the paper quoted retired Fairfax County prosecutor Robert F. Horan, Jr., who defended the letter.
"I don't think there's anything wrong with a prosecutor advising jurors that they can talk or not talk," Horan is quoted saying. "I also think it's all right to say that the questioner doesn't have their best interests at heart."
The order does not provide any analysis or rationale for the decision, but indicates that the dismissal was sought by Special Assistant Bar Counsel. (Mike Frisch)
An attorney who came to the attention of disciplinary counsel as a result of a trust account check overdraft was suspended for 24 months by the Washington Supreme Court. According to the attorney, the first overdraft was an "oversight." The bar accepted this explanation but the problem persisted. The attorney admitted that he had "fudged things" in responding to the bar complaint. The court found more than fudge; rather, he had made false statements to disciplinary counsel.
The court rejected mitigation based on health problems because the medical conditions did not cause the misconduct:
The hearing officer did not expressly find a connection between [his] personal
problems and any of his misconduct. Rather, she found that [he] had a major illness
and surgery in 2003, that subsequent to the surgery [his] mental and physical
condition and financial situation deteriorated, and that the deterioration of [his]
financial situation resulted in his personal bank accounts being closed. These findings
arguably demonstrate a connection between [his] personal problems and his violation
of former RPC 1.14(a), as charged in count 3, by depositing lawyer funds into his
pooled IOLTA trust account.
The hearing officer's findings do not, however, demonstrate a connection between [his] problems and any of the other misconduct charged, including his violation of ELC 5.3(e)(1) and former RPC 8.4(c), as charged in count 6. Thus, although the personal or emotional problems mitigator was properly found, its effect, if any, was inconsequential in light of the unchallenged aggravating
No Tort For Truth
A tenured Spanish professor at Creighton University was the subject of a sexual harassment complaint filed by a junior colleague. The evidence consisted primarily of email exchanges between the two in Spanish and Catalan. The parties differed on the proper translation of the emails. The school's sexual harassment committee found merit to the complaint and placed the accused on probation with a counseling requirement.
The professor then sued the complainant for tortious interference with a business relationship. The Nebraska Supreme Court affirmed the dismissal of the lawsuit, finding that there was sufficient evidence that the complainant told the truth. There is no tort for truthful disclosures.
The emails are set forth in the court's decision, along with the court's view that the Spanish Department was a place where people did not work well together: "It is apparent from the record that the faculty in the Depatment did not get along with one another." (Mike Frisch)
Neglect Draws Two-Year Suspension
The New York Appellate Division for the First Judicial Department affirmed findings of neglect of five client matters but rejected a proposed six-month suspension and imposed a suspension of two years. Departmental Disciplinary Counsel had argued for the greater sanction. The court found pervasive neglect of the matters, which came to light when a client complained to the law firm:
Respondent's firm only became aware of his neglect in August 2006 after being contacted by a client, after which respondent was informed that the firm would review all of his assigned cases on August 28, 2006. Respondent admitted his misconduct in all five matters on that date, and the firm subsequently terminated his employment and filed a complaint with the Disciplinary Committee. Its letter to the Committee noted that during the nine years he worked for the firm, respondent "had shown himself to be a dedicated, thoughtful attorney who performed most of his work in exemplary fashion," concluding that the instances of client neglect "appear to be an aberration rather than the rule." A subsequent letter to the Committee noted respondent's efforts to rectify the consequences of his misconduct prior to his departure from the firm.
As to sanction:
This Court has consistently held that a persistent pattern of neglect warrants a substantial suspension from the practice of law (see Matter of O'Shea, 25 AD3d 203  [two-year suspension for neglect of four client matters, misrepresentations to the clients, good reputation, outstanding record of community service, some psychological problems, with one prior admonition]; Matter of Leavitt, 291 AD2d 37  [18-month suspension for neglect of three matters, misrepresentations to clients, initial misleading answers to Committee and two prior admonitions, one of which was for similar misconduct]; Matter of Gill, 225 AD2d 170  [three-year suspension for neglect of single matter, repeated misrepresentations to client regarding status of case and creation of fictitious litigation papers]). A substantial period of suspension has been imposed even where the respondent had no prior disciplinary history (e.g. Matter of Furtzaig, 305 AD2d 7 ; Matter of Gill, 225 AD2d 170 , supra). Moreover, respondent herein has no attendant psychological condition or personal circumstances that warrant mitigation of the sanction (cf. Matter of Rosenkrantz, 305 AD2d 13 ; Matter of Siegel, 193 AD2d 181 ). Finally, the adverse impact on legal employment is inherent in any suspension of significant length (see Matter of Leavitt, 291 AD2d at 39; Matter of Racer, 56 AD3d 125, 129 ).
August 27, 2009
No Mitigation Without Causation
The New York Appellate Division for the Second Judicial Department imposed a three-year suspension of an attorney based on findings of dishonest conduct. The lawyer made false statements of fact to a tribunal and failed to advise the tribunal of prior rulings in litigation. The court did not accord significant weight to claims of mitigation:
By way of mitigation, the respondent submits that he has accepted full responsibility for his actions, which were not the product of self-dealing, that he has persuasively expressed his regret, shame, and remorse, that the actions under review involved only one case out of a long and distinguished career lasting over 23 years, and that his misconduct dates back to 2004, which was a particularly low point in his life due to a severe medical condition. The respondent has since been diagnosed with chronic inflammatory demyelinating polyneuropathy, a chronic condition of no known origin or cure which causes the autoimmune system to attack the peripheral nervous system and has destroyed a large part of it. According to the respondent, his symptoms included agonizing backaches and weaknesses in his arms and legs. He experienced these symptoms when he was representing[the client]. In addition, he experienced chronic exhaustion.
The Grievance Committee notes that the respondent has offered no evidence that his illness caused him to issue false statements of fact to the courts, to fail to advise the Family Court of prior decisions of other courts, to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation, or to engage in frivolous conduct by filing a deficient record on appeal.
The Special Referee offered the observation that the respondent's misconduct was apparently unrelated to self-dealing but was more likely attributable to an overly zealous series of actions designed to achieve his client's objective.
The web page of the Ohio Supreme Court reports on a case of permanent disbarment:
The Supreme Court of Ohio today permanently revoked the law license of Middletown attorney Karan Marie Horan for multiple acts of professional misconduct including conversion of a minor client’s trust fund, neglecting and abandoning legal matters entrusted to her by several clients without refunding their unearned fee advances and filing falsified applications in the Butler County Court of Common Pleas seeking payment for legal services she had not performed. Horan’s license has been under suspension since December 2007 for failure to comply with state attorney registration requirements.
The Court adopted findings by the Board of Commissioners on Grievances & Discipline that in six different cases Horan obtained fee advances of up to $10,000 to pursue legal matters on behalf of clients, but subsequently failed to make required appearances or filings and ultimately abandoned the clients’ cases without notice and without refunding any of their unearned fee advances. The Court also adopted the board’s findings that Horan violated her fiduciary duty to a minor for whom she served as guardian ad litem by failing to deliver the proceeds of a trust account to which the minor was entitled on his 18th birthday. The client has been unsuccessful in locating the proceeds of the trust or in contacting Horan, whom the Butler County sheriff reports has left the country without leaving a forwarding address and has not returned.
The Court also noted that Horan was indicted by a Butler County grand jury on 28 counts of tampering with records, one count of forgery, and one count of grand theft stemming from her alteration of fee applications to cover court-appointed work worth several thousand dollars by replacing other attorneys’ names and addresses with the name of another attorney who once practiced law in Ohio, and including her home address. It was also discovered that Horan had altered fee applications for services she performed on behalf of indigent defendants by “whiting-out” the reduced compensation granted by the court because her application was submitted late and replacing the lower figures with the original amounts. Because of her disappearance, Horan has not been tried on these criminal counts.
Based on its findings that Horan has engaged in conduct involving fraud, deceit, dishonesty or misrepresentation, committed illegal acts that reflect adversely on her honesty and trustworthiness, failed to maintain client moneys in a segregated account, failed to promptly pay moneys to which her clients were entitled and committed multiple other violations of state attorney discipline rules, the Court voted 7-0 to impose permanent disbarment as the only appropriate sanction for her misconduct.
Foreclosure Advice Is Unauthorized Practice
A decision today from the Ohio Supreme Court:
The Supreme Court of Ohio ruled today that Cincinnati-based Foreclosure Solutions L.L.C. and the company’s owner, Timothy A. Buckley engaged in the unauthorized practice of law by giving legal advice and negotiating with lenders on behalf of thousands of property owners facing foreclosure of their mortgages.
In a 7-0 per curiam decision, the Court accepted the recommendation of its Board on Unauthorized Practice of Law that it issue an injunction ordering Foreclosure Solutions and Buckley, who has never been licensed as an attorney, from engaging in any future acts that constitute the practice of law and impose a $50,000 civil penalty for the company’s past illegal conduct.
According to joint stipulations of fact in the case, Foreclosure Solutions sent direct solicitations to property owners against whom foreclosure actions had been filed and also marketed its services on two Internet sites. In exchange for a fee of from $700 to $1,100, the company and property owners entered into a business agreement under which the owners agreed to make regular deposits into a bank account as evidence of their solvency. Foreclosure Solutions used a portion of the owner’s fee to pay an attorney hired by the company to file an answer to the foreclosure complaint, forestalling an immediate default judgment. It then used non-attorney employees to negotiate with the lender for an adjustment of the owner’s mortgage terms, using the owner’s bank deposits as a bargaining chip. As part of the business agreement, the homeowner agreed to file for bankruptcy protection only as the “last alternative” to save their home.
In today’s decision, the Court observed that: “In Ohio, the practice of law is not limited to the conduct of cases in court but embraces ‘the preparation of pleadings and other papers incident to actions,’ ‘the management of such actions,’ and ‘in general all advice to clients and all action taken for them in matters connected with the law.’ … In Cincinnati Bar Assn. v. Mullaney (2008), … we sanctioned lawyers for, among other forms of professional misconduct, aiding Foreclosure Solution agents in the unauthorized practice of law … In that case, three lawyers facilitated a widescale operation in which respondents and their agents promised legal assistance to allow thousands of debtors to avoid foreclosure. Respondents hired the lawyers to appear in court and delay pending foreclosure proceedings while the agents, principally nonlawyers, obtained financial information from the customers and negotiated with mortgagees to reinstate the loan. Contrary to professional duties and responsibilities, the three lawyers in Mullaney did not assess individualized needs of Foreclosure Solutions customers to determine the best course of legal action for relieving their financial distress, including whether to petition for bankruptcy immediately. They instead pursued the single strategy that respondents offered as a resolution – to stall the pending foreclosure proceedings in the hope of the agents’ or lawyers’ negotiation of a settlement with the mortgagee. By surrendering their professional judgment in this way, the lawyers aided respondents in engaging in the in the unauthorized practice of law.”
Quoting further from its decision in Mullaney, the Court wrote: “‘Counseling debtors in financial crisis as to their best course of legal action requires the attention of a qualified attorney.’ … Here, however, respondents and their agents implemented a one-size-fits-all plan to protect customers’ legal interests when they did not have the qualifications and training required of the legal profession nor were they constrained by the ethical standards with which lawyers must comply. … We have repeatedly held that nonlawyers engage in the unauthorized practice of law by attempting to represent the legal interests of others and advise of their legal rights during settlement negotiations. … And we have specifically so held with regard to nonlawyers attempting to advise debtors of their legal rights and the terms and conditions of settlement in negotiations to avoid pending foreclosure or other collection proceedings. … Finally, we have long ago concluded that laypersons may not insulate themselves from responsibility for engaging in the unauthorized practice of law by using powers of attorney executed by the customers or by simply informing customers facing foreclosure that the layperson is not an attorney and is, therefore, incapable of giving legal advice.”
The Court concluded: “We accept the recommendation of the board. We enjoin respondents Foreclosure Solutions, L.L.C., and Timothy A. Buckley, their officers, agents, employees, successors, and assigns from attempting to represent the legal interests of others or attempting to advise others of the terms and conditions of settlement in negotiations to avoid pending foreclosure proceedings and from engaging in all other acts constituting the unauthorized practice of law. We also order respondents Foreclosure Solutions, L.L.C., and Timothy A. Buckley to pay civil penalties, assessed jointly and severally, in the amount of $50,000, representing the amount obtained through the unauthorized practice of law. Costs are taxed to respondents.”
The opinion of the court is linked here. (Mike Frisch)
Consent Suspension Approved
The District of Columbia Court of Appeals has approved a consent disposition and imposed a 60-day suspension of an attorney who had "inaccurately represented his status at the law form where he was employed, made a false representation on behalf of a friend, improperly charged personal expenses to others, worked outside the firm against the law firm's written policies, and asserted a position on behalf of clients that was adverse to a position taken by a client of the firm without first obtaining informed consent of all parties."
LawShucks reports that the misconduct took place while the attorney was employed at Pillsbury Winthrop Shaw Pittman LLP. (Mike Frisch)
August 26, 2009
Bar Charges For Domestic Abuse
The Illinois Administrator has filed disciplinary charges against an attorney alleging neglect of an estate matter and separate instances of domestic battery against his wife and daughter. The incident involving the wife took place at El Taco Grande, where he struck the wife with an open hand while intoxicated. The incident involving the daughter is described as follows:
On or about February 13, 2007, Respondent got into an argument with his 17-year-old daughter...while at their home on Westchester Court in Aurora, Illinois.
Respondent squirted his daughter with a water bottle and in the ensuing struggle, when his daughter attempted to wrest the bottle from Respondent, Respondent slapped his daughter and scratched her neck.
Respondent’s wife...pulled Respondent from [his daughter] and [his daughter] stated that she would telephone the police. Respondent threatened to "beat the shit out of" [his daughter] if she called the police. [The daughter] then telephoned the police.
On February 13, 2007, after the police arrived, [his daughter] signed a sworn statement attesting to the facts of the incident set forth in paragraphs 10-12 above.
On February 13, 2007, Aurora police officer Nancy Stefanski prepared and signed a complaint against Respondent, placed him under arrest and transported Respondent to the Aurora Police Department, where he was held overnight.
According to the bar charges, the incident with the wife led to a conviction for domestic abuse. The other criminal charge was dismissed when the daughter declined to press charges. (Mike Frisch)
Advanced Legal Studies Programs at Suffolk Law - September 2009
Suffolk University Law School's nonpareil Advanced Legal Studies program is offering the following three opportunities at the school (120 Tremont Street, Boston, MA, conveniently located across the street from the Park Street T station) in September. You can call the ALS office at 617.573.8627 or click on the link to get prices and details.
Current Legal Issues For Nonprofit Organizations: Dealing with Growing Needs in Difficult Times
Friday, September 11, 9:00am-5:00pm
Civil Litigation 101: Tips Tactics and Strategies For Trying Cases (Sponsored with Macaronis Institute for Trial and Appellate Advocacy and Massachusetts Academy of Trial Lawyers)
Thursdays, September 17, 24 and October 1, 4:00pm-7:30pm
How Changes in the Patent Law Alter Patent Prosecution, Litigation & Licensing (Sponsored with Boston Patent Law Association and Suffolk University Law School's IP Law Concentration)
Friday, September 25, 9:00 AM—4:30 PM
No Show, No Mitigation
A Louisiana hearing committee has recommended the permanent disbarment of an attorney convicted of conspiracy to bribe a public official. The payment of $135,000 was made to an agent of the State of Louisiana in connection with the approval of a $1.35 million film tax credit. While the lawyer had alleged "lack of knowledge," he had pled guilty to the charges and had not appeared at the disciplinary hearing to press his claim. He also had practiced law while suspended.
Additional information about the criminal case from the New Orleans Times-Picayune is linked here.
Imbd.com has the following information about the attorney's background:
At the age of 36, [the attorney] has produced more than 30 feature films and made-for-television movies. He is the CEO of L.I.F.T. Productions, Louisiana's only full-service production studio, and the manager of one of the largest independent film funds, LA Squared, whose investors include basketball star Baron Davis, Hotelier, Club Impresario Sam Nazarian, and the State of Louisiana.
[He] has received numerous awards and citations, including an Emmy nomination and an official Day named after him in New Orleans. An attorney educated at Cornell and Tulane Universities, [he] was born in Tokyo, and spent most of his life in London and Santa Monica, California, before settling in New Orleans 11 years ago.
The Louisiana Attorney Disciplinary Board has recommended a three-year suspension retroactive to the attorney's 1997 interim suspension for a laundry list of ethical violations. The board found that the attorney's recovery from chemical addiction was "truly inspiring" and noted that he had served the equivalent of two consecutive disbarments while suspended. The board notes:
This is a unique case. [The attorney] consented to an interim suspension some 13 years ago, and formal charges were first brought against him over a decade ago. His conversion of client funds and other misconduct during 1995-1998 was egregious, but after serving incarceration with hard labor for converting funds, [he] has returned as a highly productive member of society. He has served as a social services provider for the City of Baton Rouge, and he volunteers his time with sobriety programs. These facts support his other convining evidence which he adduced to show that he has recovered from his own chemical dependancy, which caused the misconduct...
Several board members expressed separate views on sanction. The majority recommendation requires that the attorney petition for reinstatement. A hearing committee had proposed a one-year retroactive suspension, which would have made reinstatement automatic. (Mike Frisch)
August 25, 2009
Call for Papers for Jan. 2010 AALS Conference
Call for Papers [to select a speaker] for the
Program of the Section of Professional Responsibility at the
2010 AALS Annual Meeting
New Orleans, Friday, Jan. 8, 2010, 10:30-12:15
TOPIC: The 2008 FATF Lawyer Guidance
Submission Deadline: September 1, 2009: Length: 3-5 Pages
The AALS Section of Professional Responsibility is issuing a call for papers to select one speaker to participate in its 2010 AALS Annual Meeting program. This program will be held in New Orleans on Friday, Jan. 8, 2010, from 10:30-12:15pm. The paper should address the program topic, which is “The Transformative Effect of International Initiatives on Lawyer Practice and Regulation: A Case Study Focusing on the FATF & its 2008 Lawyer Guidance.” (The theme for the annual meeting is “transformative law.”)
Even if you have never heard of the FATF or its October 2008 Lawyer Guidance, please don’t rule yourself out of this call for papers - you are in good company! One reason why we selected this topic for the Annual Meeting program is our belief that few legal ethics scholars (or other scholars) are aware of the FATF’s legal profession gatekeeper initiatives, even though they have the potential to implicate the lawyer-client relationship in significant practice areas and are likely to change, in some significant ways, the manner in which these U.S. lawyers practice. See Risk-Based Approach Guidance for Legal Professionals (Oct. 23, 2008)[FATF 2008 Lawyer Guidance], http://www.fatf-gafi.org/dataoecd/5/58/41584211.pdf; Kevin L. Shepherd, Guardians at the Gate: The Gatekeeper Initiative and the Risk Based Approach for Transactional Lawyers, 43 Real Property, Trust and Estate Law Journal 607 (2009).
The speakers in Part 1 of this program include U.S. lawyer Kevin Shepherd and U.K. lawyer Colin Tyre, who are among the handful of lawyers who were primarily responsible for handling the negotiations with the 34 intergovernmental organization called the FATF during the last 18 months leading up to the adoption of the October 2008 FATF Lawyer Guidance. They will address the history and negotiating dynamics that led to the 2008 FATF Lawyer Guidance, explain how it is being implemented in the U.S., and will address its implementation in other countries (some of whom now have ethics rules or laws implementing FATF principles). The speakers in Part 2 of the program come from different legal disciplines and will offer their reflections on the FATF lawyer gatekeeper developments. The speakers include Professors Tom Morgan, a leading legal ethics and antitrust expert, Ellen Podgor, who is a white collar crime expert and the author of the white collar crime blog, and James Gathii, whose area of expertise includes international commercial (and comparative) law. Laurel Terry will moderate the panel. The fourth panelist in Part 2 will be chosen by this Call for Papers. We invite you to review the FATF 2008 Lawyer Guidance and submit a brief paper that contains your reflections about the significance of these FATF developments, their likely influence in the future, the extent to which they represent a transformative change in law-making or lawyer regulation, the increasing role of gatekeeper initiatives and international initiatives in U.S. lawyer regulation, or any other aspect of interest.
If you would like more information before responding to the “call for papers,” please email Laurel Terry at LTerry@psu.edu. We have a four page “briefing paper” with additional information and resources that we can email to you.
If you would like to be considered for the panel via this “call for papers,” please submit a 3-5 page (double-spaced) summary of your proposed remarks. The deadline is September 1, 2009 and submissions should be sent to Professor Laurel Terry, Penn State Dickinson School of Law, LTerry@psu.edu. She will forward the submissions (without names) to the committee reviewing the submissions. The Section will notify the AALS of the selected speaker by October 1, 2009; the selected speaker will be notified shortly afterwards. Panelists are eligible as long as their papers are not in print before the January 8, 2010 AALS Annual Meeting. (The paper may be accepted for publication.) The AALS will distribute at the Annual Meeting a publication that announces the speakers selected by a “Call for Papers.” The AALS also has a section on its website where it can post the papers from the “Call for Papers.”
Subpoena For Patient Records Upheld
The New York Appellate Division for the First Judicial Department held that the State Board for Professional Medical Conduct had sufficient evidence to issue a subpoena for a doctor's records of nine HIV patients. The court further concluded that steps to protect confidentiality were appropriate:
In recognition of the need for confidentiality in this matter, any disclosure order must provide for redactions of material that is not necessary for the conduct of the investigation and must otherwise comply with § 2785(6). At this preliminary stage, the redacted material would include the names and identifying information of the patients whose files are sought (their files can be identified by code), as well as the names and identifying information of other individuals whose names might appear in the file. We caution, however, that the redaction of the names at this stage of the investigation should not be construed to mean the names are to be permanently redacted. There may be a point in the future when the needs, or the results, of the investigation warrant disclosure of certain identities to the OPMC by court order. Respondent also proffers no reason why personal information such as sexual history should be disclosed.
Furthermore, notwithstanding the apparent anomaly in the statute and because the records now are being provided by court order in response to a motion to compel, we direct that each of the nine patients whose files are being sought shall be given the opportunity before the court to submit any objections to the release of certain information in his or her file, and to request appropriate redactions. In weighing such objections the court must be mindful to balance the patients' privacy concerns with the nature of the investigation itself, which involves serious allegations.
Nonparticipation Equals Fitness
The Indiana Supreme Court recently imposed a suspension of 120 days without automatic reinstatement in a case that reminds me of cases I handled as a bar prosecutor. The attorney accepted two family law matters shortly before undergoing heart surgery. The cases were neglected and the unearned fees were not returned. The attorney had been previously admonished for similar misconduct. The attorney failed to participate in the disciplinary proceedings and defaulted on the charges.
The court expressed sympathy for the attorney's situation, but noted that there was no evidence submitted to sustain a link between the violations and the attorney's medical condition. Absent such evidence, the court concluded that public protection required that the attorney establish fitness prior to reinstatement.
The court is correct. As as bar prosecutor, I prefer to handle matters like these as disability rather than disciplinary cases. You can't do that if the accused attorney won't participate. (Mike Frisch)
In The Spotlight
From the web page of the Ohio Supreme Court:
In a decision announced today, the Supreme Court of Ohio imposed a two-year license suspension against [a] Dayton attorney...based on an incident in which [he] engaged in an armed standoff with Dayton police after firing a handgun out of a window of his home to frighten away an “intruder” who turned out to be an on-duty police officer investigating a stolen car report. [The attorney] was ultimately forced from his home by officers firing teargas. He subsequently entered guilty pleas to felony counts of assault with a deadly weapon and inducing panic. [His] law license has been under suspension since the Court was notified of his criminal convictions in August 2007.
In today’s decision, the Court agreed with findings by the Board of Commissioners on Grievances & Discipline that [he] engaged in illegal conduct involving moral turpitude and conduct that adversely reflects on his fitness to practice, but also noted that on the night of the incident [he] had been awakened from a deep sleep by a spotlight being shined into his darkened home, and that the uniformed officer who entered his yard was obscured by the glare of his spotlight and did not identify himself as the police
In light of aggravating and mitigating factors in the case, including [his] admission of guilt and nearly 30 years of law practice without prior disciplinary infractions, the Court adopted the board’s recommendations that [he] receive a two-year suspension with credit for time already served since his interim suspension on Aug. 30, 2007, and that he successfully complete a mental health evaluation prior to reinstatement of his license.
The court's opinion is linked here. (Mike Frisch)
August 24, 2009
Ohio Outsourcing Opinion
From the web page of the Ohio Supreme Court:
Two recent advisory opinions from the Supreme Court of Ohio’s Board of Commissioners on Grievances & Discipline offer guidance on outsourcing legal or support services and whether a newly appointed domestic relations magistrate can continue to serve as a city council member.
Opinion 2009-6 finds that the Ohio Rules of Professional Conduct do not prohibit an Ohio lawyer or law firm from outsourcing legal or support services domestically or abroad, either directly to lawyers or nonlawyers or indirectly through an independent service provider. The opinion cautions, however, that applicable rules do impose significant ethical requirements.
Some of those ethical requirements include the circumstances and rules that require disclosing, consulting with a client and obtaining informed consent before outsourcing. Other considerations include being responsible for another lawyer’s violation of professional obligations and making reasonable efforts to ensure a nonlawyer’s conduct is compatible with the professional obligations of the lawyer. “The extent of supervision for outsourced services is a matter of professional judgment for an Ohio lawyer, but requires due diligence as to the qualifications and reputation of those to whom services are outsourced.”
The opinion also discusses reasonable fees and expenses in these arrangements and leaves the decision as to whether to bill an outsourced client as part of the legal fee or an expense to the lawyer’s professional judgment.
Opinion 2009-7 finds that it is improper under the Ohio Code of Judicial Conduct for a newly appointed full-time or part-time domestic relations court magistrate to continue serving out a term as an elected member of city council.
The opinion references Rules 1.2, 1.3 and 4.5 as offering guidance in answering the question posed.
The opinion also notes that there may be statutory compatibility issues to consider, but those are beyond the scope of the opinion.
Attorneys Of Aboite
Three lawyers from the Aboite township in Allen County, Indiana formed "Attorneys of Aboite, LLC" notwithstanding the fact that they had separate practices and were not a firm. The name was used in notices, documents, communications, telephone listings, ads, and an internet web site "without revealing that they did not practice as a firm."
The Indiana Supreme Court issued each a public reprimand for the use of an inherently misleading trade name. None of the three had prior discipline and the use of the trade name had ceased. The court accepted an agreement beween the lawyers and disciplinary counsel as to the facts and the appropriate sanction. (Mike Frisch)