October 31, 2009
An attorney was retained by two clients to bring a class action against Equitable Life. The attorney associated with two other law firms--the O'Quinn firm in Houston and Milberg Weiss in New York. The claims were settled without the knowledge or consent of the clients. One client balked at the payout and pressed the lawyer for details without success. She hired new counsel and sued the lawyer for malpractice. She also filed a bar complaint.
The Louisiana Supreme Court imposed a three-year suspension, rejecting the attorney's claim to have been a passive observer of the settlement process. Two justices would disbar, one of whom quotes at length from that great American lawyer Abraham Lincoln. (Mike Frisch)
October 30, 2009
Not Privileged But Work Product In Part
The Iowa Supreme Court considered the application of attorney-client privilege and work product doctrine to an interview conducted by defense counsel in a medical malpractice action. Counsel represented a defendant doctor and his entity employer. The defendant doctor had referred the plaintiff to another doctor (not a defendant) in the same group, who in turn referred the plaintiff to a third doctor. Defense counsel violated an Iowa statute by conducting an interview of the second doctor without notice to plaintiff's counsel, who had a statutory right to sit in on the interview of his client's treating physician. Defense counsel made a memo of the interview. When plaintiff's counsel learned of the interview and memo, a motion to compel production was filed.
Here, the court held that the attorney-client privilege did not apply notwithstanding counsel's claim to have also represented the second doctor. Such representation might run afoul of conflicts rules. However, the work product would protect from disclosure defense counsel's mental impressions but not the views of the second doctor as a treating physician and witness. The court remanded to the trial court to order disclosure of the potions of the memo that are not work product. (Mike Frisch)
An attorney was automatically disbarred by operation of a felony conviction by the New York Appellate Division for the First Judicial Department:
The Departmental Disciplinary Committee seeks an order...striking respondent's name from the roll of attorneys as of the date of his conviction of a felony...On June 28, 2006, following a jury trial, respondent was convicted in Supreme Court, New York County, of assault in the second degree, a class D felony, after he struck a police officer with his motor vehicle while the officer was issuing him a traffic summons. After respondent failed to appear for sentencing in September 2006, the court issued a warrant for his arrest. Respondent fled to and resided in Africa and Europe, but returned to court on the outstanding warrant in January 2009. In May 2009, respondent was sentenced to six months of incarceration and five years of probation.
In opposition to the petition, respondent, pro se, claims, inter alia, that he is innocent and that he was "duped" by his own counsel, and asks that any sanction be deferred pending the appeal of his conviction.
Respondent's felony conviction automatically disbarred him by operation of law. There are no legal grounds for a stay pending the appeal of a felony conviction.
October 29, 2009
Unauthorized Settlement Is Fraud On The Court
The Nevada Supreme Court has held that a stipulated judgment must be vacated in a medical malpractice action against a hospital. The plaintiff family had retained an attorney. Unbeknownst to the client, the attorney settled the case for $160,000, forged the settlement papers and disappeared with the proceeds. The family sought to vacate the settlement. The hospital opposed, contending that the plaintiffs had selected counsel, endowed counsel with the apparent authority to settle and should bear the burden of their bad choice.
The court found that the lawyer ("a faithless agent") had perpetrated a fraud on the court:
In this case, Davidson [the absconding attorney] obtained Valley Hospital’s lawyer’s signature on the stipulated judgment and presented it to the district judge, who signed and entered it as the final judgment in the case, forever concluding the Garner family’s wrongful death claims. In so doing, Davidson acted as an officer of the court and misrepresented a fraudulent settlement to the district court judge as genuine. Other courts, confronted with like facts, have found fraud on the court, egregious enough to justify vacating the judgment and allowing the claims to proceed.
Conviction In Scotland Leads To New York Disbarment
The New York Appellate Division for the Third Judicial Department has disbarred an attorney who had been convicted on plea of guilty to embezzlement from clients. The conviction was in Edinburgh Sheriff Court, Scotland and involved the theft of 130,000 pounds (about $178,000). Details from the web page of the Law Society of Scotland:
[A f]ormer solicitor...was sentenced today, Wednesday, December 10, to three years imprisonment, reduced from four years for an earlier guilty plea, at Edinburgh Sheriff Court for embezzling £130,000 of client funds. [The socilitor] had been banned from practising as a solicitor in 2004 following Law Society of Scotland investigations.
She was officially struck from the roll of solicitors on 1 September 2005 by the Scottish Solicitors’ Discipline Tribunal after being found guilty of professional misconduct. This could not be made public at the time because of ongoing criminal proceedings.
Breaches of accounts rules and discrepancies in client accounts were uncovered during a Law Society inspection of the firm where [the solicitor] worked, leading to the Society's request to the court to appoint a Judicial Factor to the firm in December 2003, to protect the firm's clients.
The Court of Session confirmed the appointment of the Judicial Factor in January 2004, at which point [her] practising certificate was suspended. Following receipt of a detailed report on the firm, the Law Society took steps to prosecute [her] before the Scottish Solicitors Discipline tribunal.
Philip Yelland, Law Society of Scotland director of standards, said: “The Law Society acted to protect the firm’s clients and [she] has not been able to practise as a solicitor in Scotland since 2004.
“Solicitors are trusted to handle millions of pounds of client funds each year. Honesty and integrity are absolutely paramount within the solicitors' profession and those who are suspected of stealing from clients will be investigated and, if they are found to be acting dishonestly or fraudulently, strong action will be taken against them, both by the Law Society and the courts.”
Additional details are available at this link. (Mike Frisch)
Claim That DA Conspired To Murder Draws Disbarment Recommendation
The Louisiana Attorney Disciplinary Board has recommended disbarment based on findings of misconduct in several matters. One set of charges involved the filing of an affidavit executed by the attorney's client, "a convicted felon with limited credibility." The affidavit accused a district attorney of conspiracy to commit murder. The board affirmed a finding that the claims were frivolous: "Respondent conducted little investigation into the facts and allegations of the affidavit before filing it into the public record...[he] could not point to any evidence that directly corrobated the accusations in the affidavit." In another matter, he withheld material information from a court with intent to mislead a court.
The board found that the conduct involved the filing and pursuit of frivolous litigation and the use of the legal process to "publicly defame public officials and private citizens." Disbarment was deemed appropriate because these provisions had never previously been violated to the degree in this case. (Mike Frisch)
October 28, 2009
A Family Affair
One of the practice pointers I impart to students relates to the particular difficulties and potential errors in judgment that can arise from the representation of family and friends. To underscore the point comes a recent Massachusetts reprimand summarized on Bar Counsel's web page:
...respondent’s father filed a civil lawsuit against the respondent’s uncle and other parties (defendants). The lawsuit concerned a partnership agreement between the respondent’s father and uncle.
After the lawsuit was filed, the respondent’s father asked for his assistance, and the respondent filed a motion to appear pro hac vice in the lawsuit on behalf of his father. The respondent’s motion was allowed, and the respondent filed his appearance in the U.S. District Court for the District of Connecticut on June 8, 2006.
...respondent’s father executed his responses to the defendants’ amended first set of interrogatories. On that date, the father swore to the accuracy of his answers and signed the verification page for the interrogatory answers in the presence of the respondent and a notary public who notarized the answers.
...at a hearing on discovery issues, the defendants raised objections to the sufficiency of the father’s interrogatory responses, including the father’s failure to identify which documents he was relying on to prove his case. On October 13, 2006, the court ordered the father to provide amended answers to the interrogatories within ten days.
The respondent’s father had left for Lebanon on October 4, 2006, planning to return on November 11, 2006. He did not comply with the court’s order by October 23, 2006. On November 6, 2006, the court ordered that the father provide the supplemental interrogatory responses by no later than November 17, 2006, warning that no further extensions would be granted and that further failure to comply could result in sanctions.
The respondent’s father was unable to return to the United States as planned on November 11, 2006, due to violent demonstrations in Lebanon. He was also unable for the same reason to travel to Beirut to have documents notarized. On November 17, 2006, the respondent called his father, and read to him all of the supplemental interrogatory responses in their entirety. The father told the respondent that the responses were accurate and to forward them to the defendants.
On November 17, 2006, the respondent made a copy of his father’s signature from the May 12, 2006 verification page to attach to the supplemental interrogatory answers, notarized the copy of his father’s signature, and dated the certification November 17, 2006. The jurat above the respondent’s signature as notary stated “Subscribed and sworn to before me this 17th day of November 2006.” The respondent then sent his father’s supplemental interrogatory answers to the defendants’ counsel. The respondent’s father returned to the United States on November 18, 2006.
On December 8, 2006, the father was deposed by the defendants. Defense counsel asked the father whether he had signed the November 17, 2006 verification page in front of the respondent and whether he was in the United States on November 17, 2006. The father responded affirmatively to both questions. The respondent was present at the deposition but did not then correct the father’s false testimony or clarify the record.
On or about February 12, 2007, the respondent assisted his father in preparing an errata sheet for his deposition transcript. They did not correct the statement that the father had signed the verification in front of the respondent, but they did report that the father had not signed the verification page in front of the respondent on November 17, 2006, and that he had returned to the United States on November 18, 2006, not November 17, 2006. The respondent provided the errata sheet to the defendants knowing that his father had not fully corrected his deposition testimony.
On February 12, 2007, the defendants filed a motion for sanctions and to revoke the respondent’s pro hac vice status on the grounds that the respondent had falsely notarized his father’s November 17, 2006 supplemental answers to interrogatories and had permitted his father to falsely testify under oath at his deposition that he had signed the November 17, 2006 verification page in front of the respondent.
After receipt of this motion, the father and the respondent filed affidavits with the court in which they fully disclosed that the father had not signed the verification in front of the respondent and that the respondent had attached a copy of his father’s signature from his May 12, 2006 answers to interrogatories to the November 17, 2006 supplemental answers, and notarized the purported signature.
On March 12, 2007, the respondent filed a motion for leave to file a withdrawal of his pro hac vice status. On March 13, 2007, the Court allowed the respondent’s motion to withdraw as counsel. On May 22, 2007, the Court denied in part the motion for sanctions, after referring the matter of the respondent’s conduct to the Federal Grievance Committee. On August 14, 2007, the United States District Court for the District of Connecticut imposed a private censure.
By affixing a copy of his client’s signature to his client’s supplemental answers to interrogatories, and by notarizing the purported signature below a jurat that falsely stated that the document was signed in his presence on that date, the respondent violated Mass. R. Prof. C. 8.4(c) and 8.4(d). By failing promptly to correct his father’s false testimony at the deposition, by failing to advise his father of the limitations on his conduct, and by failing to ensure that the errata sheet provided to the defendants was correct, the respondent violated Mass. R. Prof. C. 1.2(d) and 8.4(c) and (d).
The respondent was admitted to the bar of the Commonwealth on December 27, 1995, and had no disciplinary history. In mitigation, the respondent played a minor role in the litigation, and his judgment was affected by the dilemma that faced his father. The supplemental interrogatory answers were true and accurate representations by the father, and the misrepresentation pertained solely to the question whether the father had signed the supplemental interrogatory answers and whether the respondent had witnessed the signature on the 17th of November. While the errata sheet was not entirely accurate, it was clear from the corrections that the respondent’s father could not have signed the verification in front of the respondent on the 17th of November when he was still in Lebanon.
The matter came before the Board of Bar Overseers on a stipulation of facts and a joint recommendation for a public reprimand. The board accepted the parties’ recommendation, and on August 10, 2009, the board ordered a public reprimand.
October 27, 2009
Illinois Bar Charges Abusive Behavior
The Illinois Administrator has filed a disciplinary complaint alleging a series of incidents involving the accused attorney. One set of alleged facts:
On February 10, 2008, while in a public park in Morristown, New Jersey, Respondent, who is Caucasian, approached three African-American women and shouted racial epithets at them. Respondent's conduct was witnessed by others in the area, who alerted police.
On February 10, 2008, shortly after the incident described...above, Morristown police officer Scott Weaver ("Officer Weaver") approached Respondent in the same park and began to question him. In response, Respondent told Officer Weaver, "I don't talk to fucking Jews" and began to walk away.
Officer Weaver instructed Respondent to return, and Respondent stated, "I don't talk to you fucking people," clenched his hands into fists and ran toward Officer Weaver. Officer Weaver responded by discharging pepper spray toward Respondent. Respondent then threw a cup of hot coffee at Officer Weaver, struck him, grasped his neck and attempted to throw him to the ground. When Officer Weaver broke Respondent's hold, Respondent ran away.
Shortly after the incidents described...above, other police officers arrived at the park to assist officer Weaver and to arrest Respondent. Respondent attempted to strike them and to escape from their custody. When questioned by the other officers, Respondent stated of Officer Weaver, "I don't have to listen to that bald-headed Jew."
On February 10, 2008, after the events described in paragraphs one through four, above, the officers handcuffed Respondent, placed him under arrest and took him to their station. After arriving at the station, Respondent referred to an Asian police officer he saw there as "Detective Chinaman."
On April 8, 2008, a grand jury of the Superior Court of New Jersey issued an indictment charging Respondent with the criminal offense of aggravated assault on a law enforcement officer in violation of New Jersey Statutes 2C:12-1b(5)(a) and resisting arrest in violation of New Jersey Statutes 2C:29-2a(3)(a). On that date, the Morris County Prosecutor's Office filed the indictment in the Superior Court of New Jersey in Morris County. The clerk of the court docketed the matter as The State of New Jersey v. Deron B. Elliott and assigned it case number 08-0337...
Between February 10, 2008 and September 15, 2008, Respondent remained incarcerated in the Morris County jail and was represented in case number 08-0337 by a public defender.
On September 15, 2008, Respondent entered a plea of guilty in case number 08-0337 to a reduced charge of Simple Assault, and the Hon. Thomas Manahan, a judge of the Superior Court, entered a judgment of conviction and sentenced Respondent to the 219 days he had already served in the county jail.
A second charge involves the lawyer's dealings with bar employees over the release to him of his MBE scores:
...Respondent telephoned the office of Illinois Board of Admissions to the Bar ("the Board"), spoke with the Board's Deputy Director of Administration, Larie Leskera ("Leskera"), and asked Leskera to reveal his February 1996 Multistate Bar Examination ("MBE") score.
...during the telephone conference...Leskera refused to reveal Respondent's MBE score and informed him that the Board's policy was to maintain the confidentiality of such scores. Respondent argued that he was entitled to his score because his ancestors had arrived on the Mayflower. Respondent then told Leskera that he was living in Vermont and asked whether she would agree to inform Vermont bar officials of his MBE score. Leskera asked Respondent to submit a written request for the information he wanted, and Respondent terminated the call.
...Respondent telephoned the office of the Board, spoke with receptionist Linda Giger ("Giger"), and again asked for his MBE scores. Giger informed Respondent that the Board could not reveal his MBE score to him. In response to Giger's statement, Respondent stated "Don't give me that shit. Do you know who you're talking to?" Respondent then stated that the Board was "going to get your fucking asses sued off," that the Board was "a bunch of fucking criminals," and told Giger to "just do what you're fucking told to do." Respondent also told Giger that he was descended from the pilgrims and told her, "you don't want to mess with a pilgrim."
...Leskera reported Respondent's abusive and threatening conduct to the Administrator of the Attorney Registration and Disciplinary Commission. The Administrator initiated an investigation and docketed the matter as Investigation No. 09 CI 1396.
...counsel for the Administrator sent Respondent a letter asking him to provide the material facts relating to his interaction with the Board. Respondent received the letter shortly after it was sent.
...Respondent telephoned the office of the Administrator, spoke with secretary Vicki J. Andrzejewski ("Andrzejewski") and began to criticize the Leskera and the Administrator of the ARDC. Andrzejewski asked Respondent whether he required additional time to respond to counsel's April 13, 2009 letter. In response, Respondent stated, "I plan on responding, sweetie." When Andrzejewski asked Respondent to converse in a more professional manner, he responded, "Go fuck yourself." Andrzejewski then terminated the call.
The lawyer is charged with, among other things, the following:
...conduct that is prejudicial to the administration of justice including adverse discriminatory treatment of others based on race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status in violation of Rule 8.4(a)(5).
An issue that might emerge involves the scope of the Illinois rules relating to discriminatory behavior. Rule 8.4 (9)(A) makes the violation of a Federal, State or local statute that prohibits discrimination a disciplinary offense. There appears to be no such allegation or finding. To what extent did the alleged behavior prejudice the administration of justice? In the park? To the police? To the Admissions office? To the Administrator? Was any of the conduct protected by the First Amendment?
Of course, the conviction conclusively establishes the underlying facts of the assault for purposes of bar discipline.
This should be an interesting hearing. (Mike Frisch)
The New York Appellate Division for the First Judicial Department has disbarred an attorney who, after a misconduct suspension, had failed to file the required affidavit and had continued to practice law. The attorney had sought to resign rather than be disbarred but would not concede the violations:
After the foregoing matters came to the Committee's attention, respondent was given an opportunity to resign from the bar, as he stated was his preference. The affidavit of resignation that respondent tendered to the Committee failed, however, to comply with the requirements of 22 NYCRR 603.11. The Committee has therefore moved for respondent's summary disbarment.
Respondent, acting pro se, has submitted an opposition affidavit attaching an affidavit of resignation, which he asks this Court to accept in lieu of granting the Committee's motion. The affidavit of resignation, sworn to on May 20, 2009, is the same affidavit the Committee rejected. We agree with the Committee that this affidavit cannot be accepted, as it fails to comply with 22 NYCRR 603.11. Specifically, respondent has stricken from the affidavit (which the Committee drafted) the portions acknowledging the complaints against him that are under investigation, admitting that he could not successfully defend himself on the merits against charges based on such complaints, and affirming that he is not resigning under coercion or duress.
In his opposition affidavit, respondent contends that he should be allowed "to resign gracefully and with the dignity that should be allowed to a lawyer who spent almost 40 years of his life performing thousands of hours of pro bono work as an attorney." In addition, he names his treating psychiatrist and lists several medications that allegedly have been prescribed for him, asserting that this information warrants accepting his resignation on medical grounds. He states that he is "emotionally unable to participate in any hearings or referrals to referees as a result of my medical condition," in that he "cannot handle the stress which would be generated by such proceedings." He refuses, however, to admit the charges against him, and declines "to prostrate myself in order to resign from the Bar."
In reply, the Committee points out that respondent fails to address the evidence of his defiance of the interim suspension order, and reiterates that the proffered affidavit of resignation does not meet the requirements of 22 NYCRR 603.11.
The Committee has demonstrated that respondent, in willful defiance of this Court's order of interim suspension and of Judiciary Law § 486, has held himself out as an attorney, has openly and notoriously engaged in the unauthorized practice of law, and has failed to file an affidavit of compliance with his interim suspension. Since the Committee's evidence is not controverted in any way, respondent should be immediately disbarred pursuant to Judiciary Law § 90(2)...We note that, under Judiciary Law § 486, an attorney who engages in the practice of law while suspended is guilty of a misdemeanor. Respondent's affidavit of resignation cannot be accepted, as it fails to conform to the requirements of 22 NYCRR 603.11.
"An Isolated Series Of Extremely Bad Choices"
The Arizona Disciplinary Commission has determined that a short suspension (sought by the State Bar) was not appropriate in a matter in which the attorney had been convicted of leaving an accident scene after he struck a motorcylist while he was drunk and taking prescription meds. The commission agreed with the hearing officer who had proposed public censure and probation. The hearing officer had found that the attorney's "conduct appears to have been the result of an isolated series of extremely bad choices, and not part of an ongoing pattern of substance abuse or dishonesty." The attorney had no prior discipline in 27 years of practice.
The commission had remanded a prior hearing officer report that had proposed no sanction at all. (MIke Frisch)
The South Carolina Supreme Court imposed a nine month definite suspension based on the following findings:
On December 26, 2008, respondent was arrested and charged with possession of cocaine with intent to distribute, possession within close proximity of a school, possession of marijuana, possession of drug paraphernalia, following too closely, failure to surrender driver’s license, and driving under suspension. Respondent’s driver’s license had been suspended for failure to pay traffic tickets.
Respondent entered into and successfully completed the pre-trial intervention program in order to dispose of the drug-related charges. The driving under suspension and failure to surrender license charges were dismissed.
Respondent admits that, at the time of his arrest, he was in possession of approximately 4.53 grams of cocaine, less than one ounce of marijuana, and a small marijuana pipe. Following his arrest, respondent consulted with Lawyers Helping Lawyers and completed an outpatient drug and alcohol program. He currently participates in a 12-step program. Respondent represents that he has abstained from drugs and alcohol since his arrest.
The attorney had agreed to a suspension in the nine months to two year range. The court declined to impose the sanction retroactively to the date of a January 5, 2009 interim suspension order. (Mike Frisch)
NITA on Skills Training
We received the following press release from the National Institute for Trial Advocacy:
* * *
In response to ongoing changes in the legal profession and in an effort to provide new insight into the best ways to improve legal training at all stages of a lawyer’s career, the National Institute for Trial Advocacy today released a free white paper titled “The Future of Legal Education: A Skills Continuum.”In announcing the white paper’s release, NITA President Laurence M. Rose noted “Although the need for improved training in the essential skills of lawyering, rather than pure legal scholarship, has been discussed for decades, in today’s environment changing the way skills are taught has gone from theoretical nicety to economic necessity.”
Drawing on insights from leading lawyer development professionals, the paper presents “specific, tangible steps that can be taken by law schools, law firms, bar associations and other continuing legal education providers,” says Caren Ulrich Stacy, founder of Lawyer Development Strategies LLC, and chair of NITA’s law firm advisory panel.
With skills as the common thread, the paper’s recommendations seek to stimulate discussion and research across all aspects of legal education. “Understanding the skills which clients value most in today’s legal practice will help law schools, legal employers and other legal education providers in future decisions regarding how we recruit, train and compensate lawyers,” added Rose.
The full white paper is available at www.NITA.org.
October 26, 2009
Attitude ProblemA Louisiana hearing committee has recommended disbarment of an attorney who pled guilty to distribution of a controlled dangerous substance. The attorney was sentenced to three years hard labor in the criminal case but was able to appear at the hearing: "[His] testimony focused on his perceptions of the unfairness of the disciplinary proceedings taking place during his incarceration... In his appearance before the hearing committee, [he] expressed distain [sic] for the proceedings and expressed no remorse for his criminal offense." He also had a prior conviction. (Mike Frisch)
No Rough-and-Tumble World
A justice of the Maine Supreme Judicial Court affirmed the imposition of a public reprimand of an attorney who represented a client in a contentious divorce proceeding: "[the client] suffers from bipolar and borderline personality disorders which are treated with prescription medication. [The client's] mental health status was a central issue in the custody aspect of the divorce proceeding."
The client was admitted to a mental health facility as a hearing neared and settlement negotiations seemed promising. The attorney honored the client's direction not to disclose the hospitalization to opposing counsel. The attorney knew that opposing counsel "would be very interested in her client's mental health status" but deflected counsel's inquiries when pressed in a telephone conversation with him.
In this appeal, the single justice agreed that there was no affirmative duty to disclose. The attorney could have declined to comment. However, "[opposing counsel] was entitled to believe her answer would not be dishonest...In fact, [the answer] was patently intended to misrepresent the gravity of the situation and keep the settlement viable...Attorneys are skilled in the use of language. While nothing prevents them from using those skills to argue and communicate effectively on behalf of their clients, there is no license for patently false statements or statements that employ strategic omissions intended to mislead. While those practices routinely occur in the rough-and-tumble world of the marketplace or human relations, they are beneath the dignity of the law." (Mike Frisch)