October 13, 2009
First Mistake Draws Suspension
From the web page of the Ohio Supreme Court:
The Supreme Court of Ohio today suspended the license of [a] Cleveland attorney...for one year, with six months of that term stayed, for improperly notarizing nine documents when he had not personally witnessed the signatures on those documents, and later participating in a meeting at which a power of attorney form was fraudulently back-dated to cover up the improper notarization.
The Court adopted findings by the Board of Commissioners on Grievances & Discipline that [the attorney's] conduct violated the state attorney discipline rules that prohibit conduct involving fraud, deceit, dishonesty or misrepresentation and conduct that reflects adversely on an attorney’s fitness to practice law.
The court's opinion is linked here. The hearing panel had proposed a fully-stayed suspension, but the Board of Commissioners concluded that the multiple acts of fraud required an actual six-month suspension. The court here adopted the board's recommended sanction.
Justice O'Donnell would stay the suspension: "After practicing law for 49 years without a blemish, respondent, believing he was helping, made mistakes by notarizing documents that he had not seen the affiant sign. Given that this record does not demonstrate any financial loss to the parties involved...a sanction of a stayed suspension is appropriate." (Mike Frisch)
In an action brought by the personal representative (and later widow) of a deceased law partner, the South Carolina Supreme Court held that the claims relating to the continuing use of the attorney's name were properly dismissed. The court described the basis of the civil complaint:
Julian Gignilliat (Gignilliat) was a founding partner in 1968 of what became the GSB law firm. The firm did not have a written partnership agreement. Gignilliat was diagnosed with a serious illness in 2001. Gignilliat died on June 22, 2002. It is undisputed that Gignilliat, cognizant of his terminal illness, requested that GSB continue to use his name after his death and that GSB not be sued
The Personal Representative (PR) of the Estate of Julian Gignilliat filed an action against GSB and six partners in the firm at Mrs. Gignilliat’s request. The PR alleged GSB continued to use and profit from the Gignilliat name without the consent of Gignilliat’s estate and without making compensation for its use.
A Consent Order was filed wherein the PR of the estate assigned Mrs. Gignilliat the sole right to any of the estate’s claims arising out of the complaint. Subsequently, Mrs. Gignilliat filed an amended complaint naming herself as the plaintiff in which she sought a declaratory judgment regarding the defendants’ right to continue using the Gignilliat name without consent, and she asserted claims for (1) infringement on the right of publicity, (2) conversion, (3) unjust enrichment, and (4) quantum meruit. She sought damages and an injunction preventing further use of the Gignilliat name without compensation.
The court concluded that any sentimental value attached to the deceased attorney's name did not form a basis for quantum meruit recovery. (Mike Frisch)
Truth In Advertising
When a bar discipline case refers to the accused attorney as Anonymous, it's a fair bet that the charges are either dismissed or deemed too trivial for sanction. Dismissal was ordered by the South Carolina Supreme Court in a matter charging a worker's compensation attorney with false advertising. The key facts:
Respondent, who has been licensed to practice law in South Carolina since 1995, is the managing member of a law firm located in Greenville. Members of the firm primarily represent victims in personal injury and worker’s compensation cases.
In December 2003, Respondent began airing a television advertisement to promote his legal services to potential clients who suffered on-the-job injuries. Respondent appeared in the advertisement and recited the following:
It’s not your fault you were hurt on the job, but I know you’re afraid to file a job injury claim. You’re afraid your boss won’t believe you’re really hurt - or worse, that you’ll be fired. We’ll protect you against these threats - these accusations - and work to protect your job. I’m not an actor, I’m a lawyer. I’m [Anonymous]. Call me and we’ll get you the benefits you deserve. The [Law] Firm.
On September 20, 2006, an "anonymous member" of the South Carolina Bar filed a complaint against Respondent with the ODC regarding the "Job Injury" advertisement. The Complainant contended the advertisement was misleading in that it created the false impression that by retaining Respondent an injured employee would not lose his or her job by filing a worker’s compensation claim.
The court agreed with a hearing panel that the charges had not been proven:
At the outset, there is no evidence that any member of the public was misled when Respondent aired his television advertisement. Moreover, we find the results of the Market Search study [offered as evidence by disciplinary counsel] are suspect and do not definitively establish that the advertisement was misleading.
The sample group was smaller than normally used for such a study and, in turn, may not have been statistically reliable. The study had a 20% margin of error. The participants were shown a total of five attorney advertisements, of which two were produced by Respondent. This undoubtedly focused the participants’ attention more keenly on the Respondent’s advertisements. Respondent’s advertisement was the only one of the five that referenced anything regarding a client’s job. The questionnaires were also worded in a way that elicited the desired response from participants.
In the absence of any reliable data that the advertisement was misleading, the determination of this issue requires an analysis of the text of the advertisement in conjunction with Rules 7.1(a) and 7.1(b), RPC, and the related Comments. See Zauderer, 471 U.S. at 652 (noting that a State need not "conduct a survey of the . . . public before it [may] determine that the [advertisement] had a tendency to mislead" when "the possibility of deception" is self-evident (citation omitted)).
We find the text of the advertisement does not: (1) contain a "material misrepresentation," or (2) operate to "create an unjustified expectation" about the results Respondent could achieve for an injured worker.
In discussing the advertisement, Respondent testified he was truthful in his representation that he would "work to protect" an injured client’s job if a worker’s compensation claim was filed. This broad statement did not imply that Respondent could guarantee or ensure that a client would not lose his job. Instead, it was merely a statement of Respondent’s role as an advocate on behalf of a client. Within this advocacy role, Respondent appeared to convey that he would use whatever means, including statutory remedies, which were available to guard against a client’s loss of employment. Accordingly, we hold the ODC failed to prove by clear and convincing evidence that Respondent’s advertisement violated either Rule 7.1(a) or Rule 7.1(b).
October 12, 2009
Loyola Law Prof Starts New Website and Twitter Feed on Louisiana Ethics and Bar Discipline
Posted by Alan Childress
This new site, Louisiana Legal Ethics, will be iPhone optimized and includes a homepage blog on Louisiana rules, issues, and decisions. It is the product of Loyola professor (and Tulane alum) Dane Ciolino with contributions and updates from Loyola students. One of its many nice features will occur when it "will offer free continuing legal education ('CLE') videos which will qualify for Louisiana MCLE ethics and professionalism credit." It also has a free eBook to the annotated ethics rules in Louisiana (a very useful text that now will be updated in real time). For those taking the upcoming MPRE, consider these incredibly useful flowcharts or "mindmaps."
Congrats, Dane, and I know all your hard work and linked resources will be appreciated.
Addressing the Transactional Pedagogy Issue: The New Teachers' Manual for Unincorporated Business Entities 4th
Posted by Jeff Lipshaw
I selected Larry Ribstein's book on unincorporated business entities when I started teaching the agency, partnership, and LLC class here at Suffolk in the spring of 2008, because I thought it did the best job of bridging doctrinal issues to real business situations. What I thought it should have, however, was a dynamite teachers' manual, and Larry was kind enough to let me have at it for the Fourth Edition.
The manual is out now - 326 pages, jam-packed with class suggestions, business problems, slides (including a CD), tear-out three-hole punched pages. If you are looking to adopt a book for your unincorporated business entities class, please make sure you take a look at this.
Dual Role Explanation Rejected, Disbarment Imposed
An attorney ("Respondent") with an unblemished record in over 40 years of practice was disbarred by the Maryland Court of Appeals. He had a "business oriented" practice with the same partner for 30 years. The partner had focused his attention on an outside resort business that eventually experienced financial problems. The problems led to litigation between the business partners. Respondent ran the business of the law practice, as his partner's attention was directed to the litigation.
The partner brought in a client with a stated up business in magnetic imaging. Eventually, Respondent played a dual role as company president and counsel to the company. He could sign business checks with the co-signature of the company's managing general partner, who was a shareholder and longtime friend of Respondent's partner. He had a signature stamp for the managing general partner, which he applied to a $58,000 check paid to his law firm for past services. He felt he had been underpaid and made a "unilateral decision to go back 14 years and increase his fee..." The managing general partner learned of the payment and confronted Respondent. Respondent admitted he had also authorized a loan to himself from the company that remained unpaid. He also had diverted another payment due to the company. Eventually, Respondent was discharged and a complaint was filed with Bar Counsel.
Respondent contented that he was acting as a company officer and "consistently believed his roles [as attorney and company president] to be separate." His actions were a desperate reaction to the financial pressures on him in running his law firm. The court found he had misappropriated funds, acted dishonestly and engaged in serious conflicts of interest. The court agreed with Bar Counsel that disbarment was the proper sanction.
If you ethics profs out there are looking for a teaching case on the dangers of mishandling entrusted funds and the dual roles of counsel/business associate, this case may be worth a look. (Mike Frisch)
October 11, 2009
Judge As Witness
A recent opinion of the Massachusetts Judicial Ethics Committee addresses a subpoena issued to a judge in connection with work as a lawyer:
The prohibition against testifying as a character witness does not apply to a judge's testifying as a fact witness in an adjudicatory proceeding. As we said in Opinion 2001-2, where we held that a judge could produce a factual affidavit in connection with a former client's parole hearing:"Canon 2B's prohibition on voluntary proffers of character testimony does not prohibit signing or submitting to a tribunal an affidavit containing factual, material information about which the judge has percipient knowledge....That is particularly true when...the judge has particular knowledge of relevant matters that is unavailable from any other source." (Emphasis added.)
Since your deposition testimony sought by Plaintiffs' counsel is not voluntary and you would be appearing pursuant to a subpoena, your testimony is treated differently under the Code. See Opinions 97-2 and 98-6. There, the Committee said not only that the judge could testify pursuant to a subpoena, but also that the judge was obliged to comply with a summons to testify.
The committee concludes that your testimony concerning facts within your knowledge does not violate the Code of Judicial Ethics. We note, however, several important caveats, the first of which is the obvious issue of attorney-client privilege.(2) While it is not within this Committee's jurisdiction to render opinions on such matters, you should make certain that you either have the Husband's (your former client) waiver of the attorney-client privilege or you should obtain competent legal advice from your own counsel as to whether the privilege should be asserted by you on behalf of the former client. You should also separately satisfy yourself as to any legal obligation you may have to assert the privilege on behalf of the deceased client, the Wife.
Secondly, as in other opinions that we have issued, we have advised that the judge take steps to ascertain whether the information sought may be obtained from some other source. In this case, it appears that you have through your attorney already done this and still your deposition is sought on the ground that you alone have percipient information sought by the litigants.
Thirdly, should you conclude after consultation with your counsel and counsel for the former client, that the issue of attorney-client privilege has been resolved and you are prepared to testify, you should limit your testimony to facts within your knowledge. As we said in Opinion 2006-2, your testimony must be scrupulously true, accurate and complete. You should limit yourself to the facts and not engage in opinion as that might be perceived as lending the prestige of your office to your former client's cause. Furthermore, you should not strategize with your former client's current counsel or take steps to advance his cause as to do so would violate the prohibition in Section 4 G of the Code against your engaging in the practice of law. With these cautions in mind, the Committee concludes that your testimony would not violate the Code of Judicial Conduct.