Tuesday, November 10, 2009
From the web page of the Ohio Supreme Court:
The Supreme Court of Ohio today announced the adoption of amendments governing out-of-state attorneys who want to appear temporarily in a proceeding in Ohio (pro hac vice). The amendments, which were adopted by a 6-1 vote by the Supreme Court, become effective Jan. 1, 2011.
Amendments to Gov. Bar R. XII of the Rules for the Government of the Bar will:
- Centralize the administration of pro hac vice admission through the Supreme Court’s Office of Attorney Services. Pro hac vice is a privilege granted by a tribunal to out-of-state attorneys not admitted to practice law in Ohio to appear before the tribunal on a limited basis.
- Establish basic criteria for appearing pro hac vice before a tribunal, including acknowledgement of Ohio’s attorney disciplinary rules and a statement that the attorney has not appeared more than three times in a calendar year in a pro hac vice capacity.
- Permit the administrative revocation of privileges to practice pro hac vice if the attorney does not comply with certain provisions of the rule.
- Require an out-of-state attorney to file an application and $100 annual registration fee before applying to appear pro hac vice.
Chief Justice Thomas J. Moyer and Justices Evelyn Lundberg Stratton, Maureen O’Connor, Terrence O’Donnell, Judith Ann Lanzinger and Robert R. Cupp concurred in adopting the amendments. Justice Paul E. Pfeifer dissented.
Monday, November 9, 2009
From the web page of the Indiana Supreme Court Disciplinary Commission:
The Indiana Supreme Court Disciplinary Commission Executive Secretary Donald R. Lundberg will resign as head of the agency that investigates and prosecutes alleged attorney misconduct effective January 1, 2010. Chief Justice Randall T. Shepard announced Lundberg’s departure and congratulated him on his new position with an Indianapolis law firm, "Don Lundberg's service over these last two decades as Indiana's chief of lawyer ethics has exemplified the very best in splendid leadership and committed public service. All of us have learned a great deal from his thoughtful stewardship of the profession's values. He's done much to help Indiana lawyers and judges do our best for the clients and citizens who rely on us for navigating the legal system."
Mr. Lundberg has been the Executive Secretary of the Indiana Supreme Court Disciplinary Commission since December of 1991. He is leaving the position to join Barnes and Thornburg LLP as a partner and deputy general counsel to the firm. Lundberg explained, “Being a part of this extraordinary Court's lawyer regulation enterprise has been a singular honor. It has also been a privilege to work over a period of eighteen years with a succession of thoughtful, bright and decent Commissioners and a truly wonderful staff. I look forward to the exciting new opportunities presented by my upcoming association with Barnes & Thornburg LLP, but I shall deeply miss my connection to the Court, its justices and my many colleagues who do such great work on the Court's behalf."
As Disciplinary Commission Executive Secretary Mr. Lundberg worked to investigate and prosecute cases of alleged attorney misconduct. He worked with the nine-member Commission and agency staff to ensure members of the Indiana bar upheld the Rules of Professional Conduct. While serving the Court, he also taught legal ethics at The Maurer School of Law at Indiana University—Bloomington and Indiana University School of Law at Indianapolis as an adjunct professor and is a frequent continuing legal education presenter on professional responsibility and legal ethics topics. In February of 1994, he was Practitioner-in-Residence at Indiana University School of Law, Bloomington, and in 2006, he was selected as one of twenty-five Inaugural Fellows of the National Institute for Teaching Ethics and Professionalism.
Among other publications, Mr. Lundberg is the author of Documenting Client Decisions: A Critique of the Model Rules Post-Ethics 2000, 14 The Professional Lawyer No. 4 at 2 (American Bar Association 2004); a four-part series of articles in Res Gestae, the monthly journal of the Indiana State Bar Association, discussing amendments to the Indiana Rules of Professional Conduct (November and December 2004 and January/February and March 2005); and is co-author with Charles M. Kidd of You Say You Want an Evolution? An Overview of the Ethics 2000 Amendments to the Indiana Rules of Professional Conduct, 39 Ind. L. Rev. 1255 (2005). He writes a regular legal ethics column, Ethics Curbstone, for Res Gestae.
He is a member of the American (Governing Council, Government and Public Sector Lawyers Division, 2003-2006), Indiana State (Board of Governors, 2005-07; General Chair, 2008 Annual Meeting); and Indianapolis (Board of Managers, 2005-06) Bar Associations, a Master of the Indianapolis American Inn of Court (President, 2008-10), a Distinguished Fellow of the Indianapolis Bar Foundation, and a Fellow of the American Bar Foundation. He is also a member and past-president (2007-08) of the National Organization of Bar Counsel, a member of the Editorial Board of the ABA/BNA Lawyers Manual on Professional Conduct, a Founder's Circle member of the ABA Center for Professional Responsibility, and an Honorary Member of the Wilkie Inn of Phi Delta Phi.
A summa cum laude graduate of The Maurer School of Law at Indiana University, Mr. Lundberg is admitted to practice law in the State of Indiana and is a member of the bars of the U.S. District Courts for the Northern and Southern Districts of Indiana, the United States Court of Appeals for the Seventh Circuit, and the United States Supreme Court. He previously worked as the Director of Litigation for Legal Services Organization of Indiana, Inc. (now Indiana Legal Services, Inc.), a public interest law firm providing legal representation in civil matters to low income clients in Indiana.
The Disciplinary Commission will launch a search for a successor and will eventually submit a proposed new Executive Secretary for consideration and approval by the Indiana Supreme Court.
Having worked with Don in the National Organization of Bar Counsel, I echo the laudatory comments from the post. Best of luck to Don in his new endeavors. (Mike Frisch)
A recent opinion of the District of Columbia Bar's Legal Ethics Committee is summarized below by the Committee:
A lawyer who drafted a brief and affidavit in reliance upon fraudulent factual misrepresentations made by a former client has no duty under Rule 1.16(d) to surrender these documents to the client. Rule 1.2 prevents a lawyer from assisting a client in conduct that the lawyer knows is fraudulent. Such conduct includes assisting a client in drafting or delivering documents that the lawyer knows are fraudulent. The lawyer may: (1) if practicable and effective, redact all portions of the documents containing misrepresentations and surrender to the client only the redacted documents; (2) if redaction is impractical or ineffective, refuse to produce the entire document to the client; or (3) if the client consents or Rule 1.6(d) is applicable, turn over the unredacted document(s) to the former client’s successor counsel with full disclosure as to the fraud contained in the document(s). The lawyer should also write the client demanding the immediate destruction or return of all prior drafts of documents containing the misrepresentations and directing the client not to file such documents with the court.
Posted by Alan Childress
Anne Bowen Poulin (Villanova) has posted this article to SSRN: Conflicts of Interest in Criminal Cases: Should the Prosecution Have a Duty to Disclose? It will be published in the American Criminal Law Review at Georgetown. Her abstract:
This article addresses two types of conflicts of interests that arise in criminal cases: 1) when defense counsel has an employment relation to the prosecutor’s office, and 2) when defense counsel faces criminal investigation or charges. Both these situations threaten both the defendant’s representation and the actual as well as apparent fairness of the proceeding. Yet, only in extreme cases are these conflicts likely to result in a reversal of the defendant’s conviction. As a result, protection of the defendant and the fairness of the process often depends on early intervention, which allows the court to advise the defendant of the risks inherent in counsel’s situation and possibly accept a waiver from the defendant or disqualify counsel if appropriate.
If defense counsel has an employment relationship with the prosecutor’s office or if counsel faces criminal investigation or charges, the prosecution generally has ready access to the pertinent information, and neither the court nor the defendant is likely to be aware of the problem. Therefore, when a situation exists that may generate one of these two types of conflict, the prosecution must have an obligation to disclose relevant information to the court and the defendant. Imposing the obligation of disclosure on the prosecution will increase the likelihood that courts will be able to address these types of conflict early and appropriately.
November 9, 2009 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack (0)
From the web page of the Virginia State Bar:
On October 20, 2009, the Virginia State Bar Disciplinary Board revoked [an attorney's] license to practice law. In consenting to the revocation, [the attorney] acknowledged that he provided false information on judicial selection questionnaires provided to the General Assembly to support his application for a judgeship.
As reflected in the attached documents, the applicant had denied that he had been treated for emotional and mental issues. (Mike Frisch)
The West Virginia Supreme Court affirmed a trial court order imposing Rule 11 sanctions against an attorney who had brought a civil action on behalf of two clients. The facts as recited in the court's opinion:
This civil action was initiated when the Warners, through their attorney...filed a complaint against the Wingfields on October 10, 2006, alleging invasion of privacy, trespass, assault, outrage, and interference with right-of-way. The underlying dispute between these adjoining property owners was allegedly premised upon difficulties with a dog owned by the Wingfields and upon Mrs. Warner's insistence that she be permitted to mow certain portions of the lawn in front of the Wingfields' home, purportedly to “maintain” an underground utility easement. The Wingfields ultimately erected a fence between the two properties in an attempt to prevent Mrs. Warner from entering their property. Mrs. Wingfield thereafter spray painted a portion of the fence on the side facing the Warners' property.
Discovery ensued subsequent to the filing of the complaint, and the Wingfields filed a motion for summary judgment on March 12, 2007, claiming that the January 2007 deposition testimony of the Warners revealed an insufficiency of evidence to support the allegations asserted in the Warners' complaint. In response to the motion for summary judgment, the Warners agreed on March 27, 2007, to voluntarily dismiss the complaint, and [the attorney] filed a notice of voluntary dismissal without prejudice. However, that dismissal document was not signed by the Wingfields' counsel, as required by Rule 41 of the West Virginia Rules of Civil Procedure. On March 28, 2007, the Wingfields filed a motion for sanctions under Rule 11 of the West Virginia Rules of Civil Procedure, alleging that [the attorney] failed to perform any meaningful investigation to discover the frivolity and baseless nature of the cause of action asserted by her clients against the Wingfields. (footnotes omitted)
The court's reasoning as to the sanction:
Reviewing the case sub judice upon the abuse of discretion standard, we must affirm the decision of the lower court. Although [the attorney] contends that she and her staff adequately investigated the Warners' case before filing the civil action and that her actions were not in bad faith or for an oppressive reason, the record reveals otherwise. The evidence before the trial court revealed that [the attorney] had not met with the Warners to discuss the merits of their claim prior to the filing of the complaint or had met with them only briefly. Count three of the complaint, for assault, was ultimately voluntarily dismissed due to [the attorney's] failure to obtain adequate information and support for the legal claims asserted in that count.
[The attorney] contends that conversation with the Warners was laborious and that the error with regard to the assault count was due to a miscommunication. This Court's review indicates that such characterization might be equally applicable to other components of the underlying claim. The entire premise of the civil action appears to be based upon miscommunications or incorrect assumptions, resulting in the filing of an essentially baseless lawsuit by [the attorney] on behalf of the Warners. The absence of communication is also apparent in the fact that [the attorney] failed to advise the Warners that the Wingfields had submitted a counter-offer during this litigation.
[The attorney] challenges the trial court's decision regarding sanctions by referring to its failure to entertain the testimony of her two staff members...However, those two individuals did submit their affidavits for review by the trial court, and such affidavits presumably included all information sought to be offered by the staff members regarding the meetings conducted with the Warners. This matter has already been inflated from a neighborhood conflict into an excessively lengthy legal battle, and to reverse this matter based upon the trial court's failure to take testimony from these two staff members would be to exacerbate an already formidable abuse of the system.
Employing the factors identified in the precedent discussed above, this Court has examined “(1) the seriousness of the misconduct; (2) the impact the conduct had in the case and in the administration of justice; (3) whether there are mitigating circumstances; and (4) whether the conduct was an isolated occurrence or was a pattern of wrongdoing.” Pritt, 204 W.Va. at 394 n.11, 513 S.E.2d at 167 n.11 (citing Bartles, 196 W.Va. at 390, 472 S.E.2d at 836. With regard to the seriousness of the misconduct, we do not find an abuse of discretion in the trial court's determination that [the attorney] failed to sufficiently and thoroughly investigate the underlying facts of this case and determine the merits of the allegations contained in the complaint. A neighborhood dispute was parlayed into a civil action, alleging invasion of privacy, trespass, assault, outrage, and interference with right-of-way, without sufficient factual basis, as conspicuously demonstrated by the ultimate deposition testimony of the Warners.
The impact of [the attorney's] actions was the abuse of the legal system through the attempted prosecution of a series of essentially baseless claims. No mitigating circumstances existed, and [the attorney's] conduct was of a continuing nature throughout the litigation. We consequently find that the trial court did not abuse its discretion in granting sanctions against [the attorney], and we affirm that determination. (footnotes omitted)
A recent opinion from the South Carolina Advisory Committee on Standards of Judicial Conduct concludes that a magistrate judge and a family court judge may not participate in a seminar concerning domestic violence. The facts:
A magistrate judge and a family court judge have inquired as to the propriety of appearing on a panel at a seminar designed to provide education and information regarding domestic violence in the community. The program is co-sponsored by several groups, including the Domestic Violence Coordinating Council, the local housing authority, and others. The seminar is a community outreach program, the purpose of which is to provide education and information. There will be several booths with promotional materials by the victim advocate groups, the Salvation Army, DSS, YWCA, and others. The judges were asked to be on the "enforcement panel" at the seminar.
Canon 4 specifically addresses extra judicial activities. It requires that a judge regulate them to minimize the risk of conflict with judicial activities. A judge shall conduct all of the judge's extra-judicial activities so that they do not cast reasonable doubt on the judge's capacity to act impartially as a judge. Canon 4(a)(1), Rule 501, SCACR. Speaking a seminar on domestic violence under the facts presented could give rise to partiality towards the victims of domestic violence and create the appearance of impropriety. Therefore, the judge should not participate as speakers at the seminar.
Sunday, November 8, 2009
A plaintiff couple who received a settlement of $829,500 as a share of the settlement of a federal qui tam action paid one-half of the settlement proceeds to the lawyers that had handled the matter pursuant to a contingent fee agreement. The lawyers also were paid $315,000 by the U.S. government. The case settled in May 2004.
In March 2007, the clients brought an action alleging malpractice and other causes of action against the lawyers. The district court concluded that there was no public policy prohibition against the statutory and contingency provisions of the fee agreement. The district court further held that the statute of limitations had run with respect to both claims of malpractice and of concealment regarding the settlement terms. The Montana Supreme Court affirmed the grant of summary judgment to the lawyers concluding that the statute of limitations had expired with respect to each cause of action. (Mike Frisch)