Friday, September 25, 2009
Thursday, September 24, 2009
The IIlinois Review Board has agreed with a hearing panel and recommended that a petition for reinstatement be denied. The attorney was convicted in Operation Greylord and had served a six-year prison term. He had consented to disbarment. The Review Board quotes the Seventh Circuit as to the nature of the crimes:
[Petitioner], the defendant in this Greylord prosecution, was a crooked lawyer. He made a living bribing crooked judges. Often [he] played the broker's role, matching lawyers who did not know which judges would take money with judges who did not know which lawyers would pay it. For these services, he has been convicted of violating the Hobbs Act, 18 U.S.C. sec. 1951, and the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. secs. 1961-68; he was sentenced to 10 years in prison.
Factors that weighed against reinstatement:
After leaving prison, [he] worked for his brother-in-law at Goldsure investments. However, he lost his job there in 2002 and has not worked since. [He] became a certified personal trainer approximately 5 years ago but has not been able to find work in that field. About one year prior to his reinstatement hearing, [he] began volunteering for two hours per week at a retirement home. He also takes care of his elderly mother and his wife, who has multiple sclerosis.
To his credit, [he] has cared for his family and has not engaged in any improper conduct since he surrendered his license. On the other hand, his activities are not on par with those of...other petitioners who have been reinstated. He began volunteer work only after he filed his petition for reinstatement. Because of his unemployment for the past 7 years, he has not recently held a position of trust or responsibility within his community. The Hearing Board indicates, and we agree, that in order to demonstrate that he is rehabilitated, [he] must show that he has offset the harm he caused with good work of some sort, in essence repaying society for his misdeeds. He has not made such a showing here. Other petitioners have accomplished this task so we do not think it is too much to ask of [him], particularly in light of his extremely serious misconduct. Because [his] activities following disbarment do not yet rise to the level of establishing rehabilitation, we agree with the Hearing Board that this factor weighs against [him].
He also was found to have lacked candor and forthrightness in his testimony at the reinstatement hearing. (Mike Frisch)
The web page of the Pennsylvania bar disciplinary system reports the interim suspension of an attorney based on a criminal conviction. The Chester County Daily Local News has some details about the underlying conviction and post-conviction contentions:
The West Chester attorney who was sent to state prison last month for stealing $20,000 from the family of a drug dealer he was representing has refiled a motion for a new trial, contending again that at least one of the jurors hearing the case acted improperly in discussing the case on the Internet.
In court papers filed Monday, Mark Rassman, the attorney representing Daniel McCaughan, said that someone calling themselves "1 of 14 Jurors" had posted items to the Internet, suggesting a bias during the trial against McCaughan.
The motion also alleges that Judge Howard F. Riley, who oversaw the trial and sentenced McCaughan to two to four years in prison, had told the panel after their verdict he was "pleased" with the outcome of the case, and said he would be "throwing the book" at McCaughan.
In March, Rassman had filed a similar motion after McCaughan was found guilty by a jury of theft and money laundering charges. Riley denied the motion for a new trial, saying that it was premature because McCaughan had as of then not been sentenced.
Riley has scheduled a hearing on the motion for June 26.
McCaughan, 48, known for his flamboyant American flag ties and lapel pins and fanciful, colorful stories about his military service, was found guilty Feb. 11 after a weeklong trial by a jury on charges of three counts of theft and one count of dealing in proceeds of an unlawful activity, a first-degree felony money-laundering charge. The jury took 90 minutes to reach its verdict.
McCaughan, whom the prosecutor in the case called "the in-house counsel for a drug cartel," took cash totaling more than $20,000 from the mother of a drug dealer who had been arrested in June 2004. He said he would keep the money for the man, Christopher Stansberry, in safe keeping, so that authorities could not seize it as part of their case against him.
But when Stansberry's mother asked McCaughan to return the money more than two years later, he no longer had it. He said he had given it to a drug dealer named Omar Vasquez, whom he said he worked for.
McCaughan was convicted of money laundering because the prosecution, led by Deputy District Attorney Stephen Kelly, was able to show that McCaughan knew the cash came from illegal drug proceeds.
In his motion, Rassman said, "at least one juror may have ignored (Riley's) instruction not to utilize any outside source of information." He said McCaughan believed that a juror, or someone purporting to be a juror "as accessing the Internet and possibly 'googgling' (sic) Defendant during the course of the trial."
Rassman said that McCaughan had retrieved several messages posted on the Topix.com Web site about the case, sent by a person calling themselves "1 of 14 Jurors."
In his motion, Rassman said the anonymous poster wrote the following:
"Judge Riley was very PLEASED with the outcome of the Jury. He will be throwing the book at Dan. The community of Lawyers in West Chester are discussed (sic) with Dan's actions and that he has portrayed them in such a negative light. Judge Riley said he will make sure that Dan is disbarred forever, so he can never practice law again in the United States."
"The comments, if made by a juror, are in fact true, (McCaughan) has been deprived of his constitutional right to a trial by a jury of impartial jurors. If the comments are true, (McCaughan) is entitled to a new trial," Rassman wrote.
The District of Columbia Court of Appeals has held that a flat fee paid to a lawyer remains the property of the client until it is earned, unless the client gives informed consent that permits the lawyer to take the fee at an earlier time. The court's opinion has an extensive discussion of flat fees and cites to case from other jurisdictions that reach the same conclusion.
The case involved a client who agreed to pay a flat fee in two installments but discharged the attorney before the paid-for services were completed. The attorney did not promptly return the payment after discharge. He refunded the fee when the the client complained to Bar Counsel. The client then sought to withdraw the complaint but Bar Counsel nonetheless filed charges.
The Board on Professional Responsibility had found that there was consent to treat the flat fee as the lawyer's property. The court found that the consent finding was not supported by substantial record evidence.
The court found that the attorney had commingled the payment but declined to impose a suspension because there had been uncertainty regarding the proper handling of flat fees prior to today's decision:
The [escrow] rule's application to flat fees is not clear on its face and, as not only respondent but his expert testified, the understanding among lawyers with respondent's type of practice has been that flat fees belong to the lawyer upon receipt, and therefore need not be kept separately in a trust account. We are confident that the D.C. Bar Board of Governors, the Bar's relevant sections, and the Board and Bar Counsel will take steps to inform the Bar and provide attorneys with helpful guidance on how to conform their practice to the rule we announce in this opinion.
Such guidance will be necessary, as all the court appears to say as to when the attorney can treat the fee as earned is as follows: "Simply labeling a fee as something other than a flat fee or extreme 'front-loading' of payment milestones in the context of the anticipated length and complexity of the representation will not excuse the lawyer from safekeeping the client's funds until it can reasonably be said that [the fee has] been earned in light of the scope of the representation."
So when is a flat fee earned? Must the attorney keep the full amount in escrow until the matter is concluded? Will this decision be the death of flat fees in the District of Columbia?
A public censure (as proposed by the board) was imposed in light of the attorney's cooperation and other mitigation. The attorney had a record of prior discipline.
One noteworthy aspect of the court's decision was its recognition of the severe impact of a suspension on a solo lawyer. This point had been emphasized by his lawyer Jake Stein, the dean of the District of Columbia Bar. (Mike Frisch)
Wednesday, September 23, 2009
Posted by Alan Childress
Not a legal ethics story, admittedly, but since you can't spell blogger without ego or bore, I am linking a story in The Times Picayune in which I am quoted on how tort reform will dehance plaintiffs' chances here in Louisiana in their efforts to collect damages for toxic drywall. It is by Rebecca Mowbray and called "Tort reform prevents Chinese drywall victims in Louisiana from making a full recovery."
A unanimous Missouri Supreme Court has imposed a stayed suspension and probation for one year in a case that involved a fee agreement "purporting to give [the lawyer] sole authority to settle claims, with or without [the client's] consent." The attorney represented the client in three matters and initially charged by the hour. When the client was unable to keep current with the monthly bills, the attorney proposed (and the client agreed to) a contingent fee arrangement that included the following language:
...because I am taking a risk with you on this case, and because I am more familiar with the legal trends relative to judgments, settlements and summary dispositions, you agree that I shall have the exclusive right to determine when and for how much to settle this case. That way, I am not held hostage to an agreement I disagree with.
The lawyer then accepted an offer that the client had rejected. He actively attempted the enforce his right to settle the case and sought to thwart the client's right to her day in court.
The court held that the agreement created a conflict of interest. The lawyer had been disciplined on three prior occasions. He also failed to respond to requests for information after he withdrew from the client's matters and commingled funds. Nonetheless, the court concluded that suspension was not necessary:
[his] actions arose out of ignorance of the rules of professional conduct instead of an intention to violate the rules, and it is likely that his misconduct can be remedied by education and supervision.
The attorney was admitted in 1977.
The case is In re Coleman, SC89849, decided on September 15. This link should take you to the court's opinions page. (Mike Frisch)
Posted by Alan Childress
Not really. But given the rash of recent bar disciplines on lawyer-bloggers and law prof-bloggers who revealed too much about jury duty and the like, on which Mike Frisch became the Deep Throat of the New York Times (or was he the Daniel Ellsberg? Or the psychiatrist? I get confused; whatever. I know he reported it from Behind The Green Door). Anyway, this is not even my jury duty story, and it is not really about the law part, more like the secondary education part -- well, tangentially about the law part if you can imagine being on trial for your life with this one juror... It is a report from Ingrid M----, with her jury story; she is a second grade teacher in Austin and said we could post this:
Jury duty was a no-go, mercifully for my students. Something about a felony being reduced to a misdemeanor trial and not needing as many jurors. By luck or some other means, I was dismissed along with about 20 others. The kid next to me seemed genuinely disappointed that he was axed.
The other emo kid next to me hadn't even figured out yet who the "Juror" was supposed to be on his pay form he was filling out. He looked on my paper and started to write "Ingrid M--" on his paper on the line marked "Juror: ________." Then I pointed out that HE is the juror when filling out HIS paper and I am the juror when filling out MY paper. This was news to him. Not realizing that he was a potential juror, it's probably best he was dismissed. Plus, the Deputy in charge, a dour Barney Fife, chided him for being late, as if it would have been better for him to have been confused longer. He probably took the extra time to figure out that the elevator button that says "3" actually takes you to the 3rd floor/jury selection room.
Plus, I was overdressed for the occasion. Most people came in jeans and a T-shirt. Not me, I was the Elle in the room. Oh well.
Not sure if she means Elle Woods or Elle Magazine, but I want to know what emoboy was wearing. Someone may have dodged a bullet lethal injection that day. Reminds me of the Woody Allen joke about cheating in philosophy class. Also reminds me of the true story I once heard from a friend at a record store (that's anachronistic, I know) overhearing a customer ask the manager, "Dude, how do you spell AC/DC?"
An elected Tennessee general sessions court judge who has served since 1998 has been charged with neglect of duties and other misconduct by the disciplinary counsel for the Court of the Judiciary. The charges (filed earlier this week) allege that the judge "consistently failed to attend her dockets and extensively used special judges to hold her dockets." It is alleged that the special judge appopintments failed to comply with statutory requirements. Further, it is alleged that the judge's frequent absences were willfull and involved attention to prohibited outside practice.
Finally, it is alleged that the judge "hired as her court officer her daughter and authorized her to be paid a salary commensurate with her assigned duties when she had no experience or training for this position and this selection was made without competitive consideration of qualified applicants....[her] daughter served in this position for approximately one year."
Disciplinary counsel moved for a hearing within 60 days of the filing of an answer.
Nashville NewsChannel5.com has a November 2008 report on the late to court problem. Money quote from the judge:
"If you're looking for perfect, you need to throw me out because I am not perfect."
From the web page of the Ohio Supreme Court:
The Supreme Court of Ohio today indefinitely suspended the law license of [a] Canton attorney... for multiple acts of professional misconduct in his handling of bankruptcy cases on behalf of several different clients.
The Court adopted findings by the Board of Commissioners on Grievances & Discipline that after accepting fee advances and agreeing to represent clients in Chapter 7 or Chapter 13 bankruptcy proceedings, [the attorney] subsequently failed to transmit financial records or make required court filings, failed to appear for scheduled hearings, failed to respond to multiple communications from clients, bankruptcy trustees and other parties, commingled monies held in trust for a client with his own funds, and failed to return unearned fee advances and other monies to clients despite their demands for and entitlement to those funds.
The Court agreed with the board’s conclusions that [his] acts and omissions violated, among others, the state attorney discipline rules that prohibit neglect of entrusted legal matters, failure to carry out a contract of professional employment, intentionally causing harm or prejudice to a client, conduct involving fraud, deceit, dishonesty or misrepresentation, conduct prejudicial to the administration of justice, and failure to promptly pay or return moneys to which a client is entitled.
In setting conditions for any future reinstatement of [his] law license, the Court established the requirements that he make prior restitution in specified amounts to specified clients and serve a two-year term of probation following reinstatement. Under today’s order of suspension, [the attorney] is barred from applying for reinstatement until Sept. 24, 2011.
The opinion is linked here. (Mike Frisch)
Tuesday, September 22, 2009
Not a legal profession case but of possible interest is a decision of the Tennessee Court of Appeals in post-divorce proceedings reversing a trial court decision that had required inclusion of a "paramour provision." The provision precluded overnight stays by the partner of the mother. The divorce was initiated after the father had engaged in an extramarital affair. He is now married to his former paramour. Mother is not so fortunate: she is involved in a committed long-term same-sex relationship and is forbidden to marry under Tennessee law.
The court here determined that the trial court must determine whether inclusion of the paramour provision is in the best interests of the children: "We hold only that the trial court was not required to include the paramour provision in the permanent parenting plan." (MIke Frisch)
Posted by Alan Childress
The Conference themes are “Lawyers Beyond Borders” and “Practicing Law in the Electronic Age.” The keynote speaker is Steve Gillers of NYU. University of Akron School of Law's Miller-Becker Institute for Professional Responsibility [with co-sponsorship from the ABA Center for Professional Responsibility] is putting it on, and has a website here. Other speakers are below the fold (including our friends Andy Perlman, Laurel Terry, and John Dzienkowski). The announcement says:
This Symposium examines important developments and questions concerning multijurisdictional practice, both on a domestic and international basis. It also considers the role of technology in the practice of law, the regulation of lawyers and the increasing globalization of the profession (cross-border practice).
A defendant under sentence of death filed a petition for post-conviction relief that included "allegations...so broad as to encompass effectively the entire scope of trial counsel's obligation's in [his] defense. Trial counsel met with attorneys of the Attorney General's Office ("AGO") and made his full file available for their inspection and review. When the defendant learned of this, he sought return of the file and disqualification of the attorneys who had seen it.
The South Carolina Supreme Court found a complete waiver of attorney-client privilege:
...Petitioner waived his attorney-client privilege “to the extent necessary for prior counsel to respond to the allegation[s]” of ineffectiveness. S.C. Code Ann. § 17-27-130 (1996). We find that the particular allegations made in Petitioner’s application for PCR were so broad as to effectuate a complete waiver of his attorney-client privilege.
Although Petitioner’s application alleged many grounds of ineffectiveness, we find that the breadth of three particular allegations constituted a complete waiver of Petitioner’s attorney-client privilege. Specifically, Petitioner’s application alleges that trial counsel was ineffective because he failed to (1) “investigate the facts and circumstances surrounding the death of the victim,” (2) “investigate, develop, and present all available, relevant, and admissible mitigating evidence,” and (3) “investigate and present evidence in support of all potential defenses in the guilt and innocence phase.” The breadth of these allegations, which encompass in effect the entirety of trial counsel’s obligations in presenting a defense, necessitated a review of the entire trial file in order for the AGO, on behalf of trial counsel, to properly “respond to the allegation[s]” in Petitioner’s application.
Finally, pursuant to the clear and unambiguous language of § 17-27-130, prior counsel was justified in disclosing the entire trial file for reviewing and copying. Section 17-27-130 states,
[C]ounsel alleged to have been ineffective is free to discuss and disclose any aspect of the representation with representatives of the State for purposes of defending against the allegations of ineffectiveness, to the extent necessary for prior counsel to respond to the allegation.
This provision permits prior counsel, when faced with extremely broad allegations of ineffectiveness, to provide representatives of the State with any information he deems necessary for the defense of his representation. Under the specific facts of this case, prior counsel was justified in making Petitioner’s entire trial file available to the AGO.
A dissent would grant the relief:
Reading the first paragraph of the statute, it is my opinion that the automatic waiver of the privilege does not extend to the entire file, but is instead limited to: “oral and written communications between counsel and the defendant, and between retained or appointed experts and the defendant,to the extent necessary for prior counsel to respond to the allegation….Thereafter, counsel alleged to have been ineffective is free to discuss and disclose any aspect of the representation with representatives of the State…to the extent necessary for prior counsel to respond to the allegation.” It is noteworthy that while this paragraph makes no mention of counsel’s file, but instead explicitly limits the permissible scope of counsel’s disclosures to AGO attorneys, it is upon this paragraph of the statute alone that the majority rests its holding.
The second paragraph of the statute does directly reference the attorney’s file, and is specifically directed to capital cases such as this. This paragraph requires that the capital defendant’s trial and/or appellate attorneys make files available to the defendant’s PCR counsel who may inspect and copy the contents but explicitly requires that the original attorneys otherwise retain custody of their files. To hold, as does the majority, that under this statute these attorneys are free to turn over their entire files to the AGO is puzzling in light of the statute’s clear directive that the files are to remain in the custody of the original attorney, and be made available only to the applicant’s attorney. I would not foreclose the possibility that an attorney charged with rendering ineffective assistance may need to rely upon an item in her file as part of her defense, but that is a far cry from copying the entire file and turning it over to the AGO.
When the Court abolished the doctrine of in favorem vitae, it did so in large part in reliance upon the legislature’s adoption of the Uniform Post Conviction Relief Act. State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991). The decision today to hold that this pro se capital defendant has made a wholesale waiver of his attorney-client privilege undermines one of the fundamental tenets upon which the abolition of the ancient doctrine rested, that is, that PCR “safeguards the [capital defendant] and render[s] the protection afforded by in favorem vitae surplusage.” Id. at 61, 406 S.E.2d 324.
I would reverse the circuit court’s order, require that the file be returned to trial counsel, and would disqualify any member of the AGO’s staff who has viewed this file or any of its contents. I respectfully dissent.
A very interesting post from the Austrailian Professional Liability Blog in June links to an order imposing removal from the roll of legal practitioners of an attorney who had represented a client charged with drug smugling in Indonesia. The attorney was a principal in the law practice Hoolihans Lawyers. The retainer agreement, in part, authorized the attorney in "appearing before the media or presenting press releases which may assist the matter..." He disclosed a confidential conversation with his client and said that his client had lied to him on the Channel 9 program "Sunday." He also "willingly participated in the making of a documentary" that was broadcast over two days by the Nine Network during which he called his former client's family "the biggest pile of trash I have ever come across in my life." Also: "this family...believes their own shit mate."
The blog reports that the attorney has retired from practice and did not contest the charges. The blog characterizes the bar action as being "struck off." Sounds better than disbarred. There is a link in the post to the Sunday interview. (Mike Frisch)
Monday, September 21, 2009
An attorney was conditionally admitted to practice in Arizona in September of 2008. The conditions required her to abstain from alcohol. Prior to admission, the attorney had a 2006 DUI conviction and a juvenile record for letting underage people drink alcohol in her house.
The attorney admitted that she had violated the abstinence requirement within six weeks of her first alcohol/drug test. She had delivered a baby by C-section, which had delayed the testing program. As described by a hearing officer:
Respondent explained why she drank alcohol on December 10, 2008. She was attending a young mother's book club when she became emotional about the stress she felt from trying to parent her newborn. She was overwhelmed by trying to care for her child while maintaining her new legal career. When she began crying at the book club about her frustrations, other club members suggested she relax by drinking a glass of wine. Her mistake of course was having the glass of wine. However, her violations should be understood in context.
The hearing officer recommends public censure and probation.
I have mixed feelings about the use of conditional bar admission. One one hand, it does provide a vehicle to admit those who in the past might not have secured bar admission. On the other, there is a view that an applicant either is or is not fit.
A period of time (here it was 18 months) of some form of monitoring may serve the public interest. Here, a single DUI and a juvenile incident does not strike me as a legitimate basis to require total abstinence from alcohol as a continuing condition of admission. The attorney was admitted subject to an agreement to participate in the bar's treatment program which promptly reported a positive test for alcohol.
While I might favor a conditional admission that required no alcohol-related convictions for a period of time or other reasonable conditions, I fear that this attorney is a victim of the bar's sobriety police. She has complied with the terms of the conditional admission from January to August 2009. (Mike Frisch)
The Maine Supreme Judicial Court recently announced a hearing on the application of Husson University to permit its juris doctor graduates to sit for the bar:
On September 1, 2009, Husson University filed an application for an order establishing that Husson’s Juris Doctor graduates are eligible to sit for the Maine Bar Examination and to be admitted to the Maine Bar.
The Court has issued an order requiring Husson to answer questions propounded by the Court; permitting interested persons to file memoranda commenting on the application; and setting a public hearing on the application.
The Court will hold the public hearing on the application on Tuesday, December 1, 2009, at 10:30 a.m. at the new Penobscot Judicial Center, 78 Exchange Street, Bangor.
A copy of all documents relating to the proceedings on the application will be posted on the website of the Maine Judicial Branch at http://www.courts.state.me.us, and will be available for inspection between 8:00 a.m. and 4:00 p.m. weekdays at the office of the Clerk of the Supreme Judicial Court, 205 Newbury Street, First Floor, Portland.
Husson University is represented by Peter L. Murray, Esq., Murray, Plumb & Murray, 75 Pearl Street, Portland, Maine 04101.
Dated: September 17, 2009
The Maine Public Broadcasting Network has a report:
Husson University wants to open a law school to satisfy a demand for younger lawyers in the most rural parts of the state.
"Across northern Maine the numbers are something like more than half are 50 or older, and Hancock County I think it's something like 60 percent of the lawyers are over the age of 55," says Micheal Mullane, Dean of the Husson University Law School, which has just started accepting applications.
In order to be eligible for American Bar Association accreditation, the school will have to demonstrate that it can attract students. But last year, the Maine Supreme Judicial Court said graduates of Husson's law school would not be eligible to take the state bar exam because the school's existing faculty and curriculum were not sufficent to prepare students.
"We have addressed recommendations of the court. We have hired highly credentialed faculty with extensive experience teaching in law schools," says Husson President Bill Beardsley. "We've incorporated American Bar Association and Carnegie Foundation recommendations related to law curriculum. We've proposed a court-appointed review commission to carry out periodic assessments of our performance, the costs of which would be borne by the university. Finally, in September we'll be filing a substantive change notification related to the law program with NEASC, our accreditors."
Beardsley says he hopes those changes will be enough to persuade the Maine Supreme Court to allow Husson Law graduates to sit for the Maine Bar Exam. The school has re-petitioned the court. And Beardsley says he hopes in five years, the school will gain American Bar Association accreditation.
If approved, Husson would open Maine's only private law school. Dean Mullane says the school will set up a legal clinic in which students will hone practical skills, and there will also be courses on being a self-employed lawyer, a common form of practice in this part of the state.
"The other thing we're going to make a serious attempt at doing is making sure not only do our students have the knowledge and the skills necessary to go out and practice on a single-shingle operation, but that they have the self-confidence to do so," Mullane says.
Husson hopes to accept its first law school students in 2010. It estimates the class will have about 30 students.
The Idaho Supreme Court has held that an elected district judge must establish a residence in the county where he sits within 21 days and file a confirming affidavit. The Idaho Judicial Council determined that the judge had not established his residence in the county where he sits, as required by statute. The court majority stated that the judge "must maintain his primary residence in Idaho County, that he must be an inhabitant of Idaho County, and that he must really live in Idaho County."
The court rejecting the judge's claims that the council had been prejudiced against him and that three Supreme Court justices should be recused. The judge had filed a civil suit against several of the justices. Also rejected was a claim that the judge was entitled to the identity of his accuser. The court found there was no accuser or informant and that the council had decided the case based on evidence that the judge resided in another county.
A partial dissent suggests that the judge has two residences, one of which is in Idaho County. (Mike Frisch)
The New Hampshire Supreme Court imposed a two-year suspension of an attorney who was found to have engaged in a complex series of conflicts of interest the attorney had represented a client in connection with disputes involving the client's mother. The lawyer advised and represented the client in establishing a conservatorship for himself and also represented the conservator after the dispute with the client's mother was resolved, in part, through creation of conservatorship for the client. The designated conservator was "a close personal friend of the respondent and the chief executive officer of a former corporate client of respondent's firm." The attorney continue to represnt both during the course of substantial disagreements between them. The lawyer also undertook to represent conflicting interests in two out-of-state guardianship proceedings, including advising the client's spouse.
The court's decision also includes a rare and useful disccusion of Rule 1.14 (client under disability) in a disciplinary context, rejecting the Rule as a justification for the lawyer's actions. The court also rejects the claim that Texas ethics rules governed the situation because the attorney was not admitted in Texas, where guardianship proceedings were brought. (Mike Frisch)
Sunday, September 20, 2009
A recent opinion from Florida's Judicial Ethics Advisory Committee:
The inquiring judge asks for an opinion interpreting Canons 5D(5)(e) and 5D(5)(h), relating to tickets to sporting events. An apparent hockey fan, the inquiring judge is a season ticket holder and has a “close personal [lawyer] friend” with access to the friend’s law firm’s suite/skybox tickets which have a higher value than the judge’s tickets. On occasion the judge and the lawyer/friend exchange tickets. At other times, once the judge is already admitted into the arena, the lawyer/friend provides the judge access to the firm’s suite/skybox during the game. The inquiring judge adds that no one in the lawyer/friend’s firm appears before the judge.
Canon 5D regulates a judge’s financial activities. Specifically, Canons 5D(5)(e) and (h) provide, in pertinent part,
(5) A judge shall not accept… a gift, bequest, favor or loan from anyone except for:
(e) a gift, bequest, favor or loan from a relative or close personal friend whose appearance or interest in a case would in any event require disqualification under Canon 3E;
(h) any other gift, bequest, favor or loan, only if: the donor is not a party or other person who has come or is likely to come or whose interests have come or are likely to come before the judge; and, if its value, or the aggregate value in a calendar year of such gifts, bequests, favors, or loans from a single source, exceeds $100.00, the judge reports it in the same manner as the judge reports gifts under Canon 6B(2).
Succinctly stated, Canon 5D(5)(e) permits a judge to accept gifts from close friends whose appearance in a case would otherwise require disqualification, and Canon 5D(5)(h) permits a judge to accept gifts from donors who have not and are unlikely to come before the judge. In the latter, if the aggregate value of the gift(s) in a calendar year exceeds $100.00, the judge must report the gift as required by Canon 6B(2).
Although the inquiring judge narrowly asks whether and how to report the tickets as gifts, the Committee broadens the inquiry to include a discussion of whether receipt of the tickets is permissible.
As explained above, judges may accept gifts from close personal friends whose appearance in a case would otherwise require disqualification under Canon 3E. The inquiring judge refers to the attorney as a “close personal friend”. Therefore, this Committee presumes that, absent the ticket exchange, the friendship ties with the attorney would be the only factor requiring disqualification of the inquiring judge. See e.g., Canon 3E(1)(b) (disqualification required where a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter).
Obviously, this Committee is in no position to assess the nature of a judge’s friendships; only an individual judge can determine whether a friendship with an attorney or party is such that one may have reasonable concern over the judge’s impartiality. In this regard, in JEAC Op. 04-35, this Committee opined that a judge must disclose a friendship with an attorney if, in the judge's estimation, the nature of the friendship is sufficient to warrant reasonable concern over the judge's impartiality. It is important to note that not all friendships, even close personal ones, require disqualification.
Rather, in many instances, disclosure is appropriate. See JEAC Op. 93-7 (if a judge maintains strong social ties with an attorney disclosure would be appropriate or necessary); JEAC Op. 89-3 (social relationship with an attorney and occasional hunting partner who permitted access to a cabin must be disclosed).
It remains this Committee’s opinion that the inquiring judge must determine, absent the ticket exchange, whether disclosure or disqualification is the most appropriate remedy if this attorney, or anyone from the law firm, would appear before the judge. This Committee also adds that, as in JEAC 04-35 and JEAC Op. 89-3, the acceptance of gifts may exacerbate the need for disqualification, when disclosure alone may have been appropriate.
As such, in adherence to Canon 2B, which provides that “a judge shall not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment” and that a judge shall not “convey or permit others to convey the impression that they are in a special position to influence the judge” if the inquiring judge would merely disclose the relationship absent the ticket exchange, it is incumbent on the inquiring judge to refrain from accepting gifts from this lawyer/friend. However, after searching his or her conscience, if the inquiring judge determines that disqualification from any matter involving the subject lawyer/friend would be required absent the ticket exchange, then the inquiring judge may accept gifts subject to the disqualification requirement in any case involving anyone from the firm.
Regarding the gift reporting requirement, JEAC Op. 02-20, summarizes the application of Canon 5D(5) as follows, “[G]ifts described in (a) through (g) of 5(D)(5) need not be reported. The Judge must only report gifts that fall under the provisions of Canon 5D(5)(h), if the aggregate value exceeds $100.00, rather than every gift received from the spouse, children, siblings, and close personal friends.” See also JEAC Op. 03-10. Thus, if the gifts are accepted under Canon 5D(5)(e), the inquiring judge is not required to report the gifts pursuant to Canon 6B(2). Therefore, the inquiring judge must first resolve the disclosure versus disqualification issue regarding appearances of the “close personal friend”. Depending on the resolution of that issue, the judge may be required to undertake an analysis of the appropriate value of the gifts, as explained below.
Canon 5D(5)(h) and Canon 6B(2) require the judge to report the aggregate value of any gifts received exceeding $100.00. The inquiring judges asks, in attempting to comply with the gift reporting requirement, “may the aggregate value of the tickets exchanged be utilized to determine if there is a net difference in excess of $100” and “if the aggregate value of the tickets exchanged nets out to be less than $100 are the tickets exempt from disclosure pursuant to Canon 5D(5)(h)?” In short, the inquiring judge asks, whether an offset may be applied for the value of the tickets given to the attorney in exchange for the value of the tickets received by the judge.
This issue is easily resolved by considering the practical application of the inquiry. Application of an offset in determining whether a judge received a gift valued at $100.00, would allow a judge to devalue the amount of any gift received merely by giving a gift to the donor in return. To permit a judge to offset the value of any gift received by giving a gift in return would subvert the clear spirit of the Code. Accordingly, if the gift is one accepted under Canon 5D(5)(h), the inquiring judge must report the total value of the tickets received in complying with the reporting requirements of Canon 6B, without consideration of the value of the tickets exchanged. In calculating the amount, the inquiring judge must also consider the value of the suite/skybox. See JEAC Op. 89-03 (contributions to son’s quail-raising hobby and use of North Carolina cabin are reportable gifts).
Finally, this Committee recommends that the inquiring judge consider In re: Luzzo, 756 So. 2d 76 (Fla. 2000) involving a judge’s acceptance of Florida Marlins baseball game tickets valued at $16.00 to $18.00, apiece from a law firm whose lawyers appeared before him in at least two cases. Here, the inquiring judge states that “no one in [the friend’s] firm appears before me.” While such may be the case currently, as judges are often transferred to varying divisions of the Court, there is no definitive way to determine whether a case is “likely to come before the judge.” Canon 5D(5)(h). As a result, this Committee cautions the judge to regulate his/her extrajudicial activities to minimize the risk of conflict. See, generally, Canon 5A.