December 1, 2009
$5,000 And A Rolex Watch
The Louisiana Attorney Disciplinary Board has dismissed as unproven charges against a criminal defense attorney. The attorney represented the incarcerated former leader of the Louisiana Hell's Angels. The client owed fees to the lawyer. A person delivered to the lawyer $5,000 and a Rolex watch, which the lawyer credited to the owed fees. The person who delivered the cashier's check and watch later claimed that they were intended to secure the representation of another incarcerated person. The lawyer denied any attorney-client relationship with the putative client.
The board affirmed findings that the evidence did not establish an attorney-client relationship with anyone other than the existing client, who apparently was pulling off a "jailhouse scam." The person who delivered the payment and watch was known as "one of his people" and there was no documentary evidence of the representation of anyone else. The board concludes:
The record in this matter raises certain suspicions. Howver, these suspicions do not rise to the level of clear and convincing evidence. ODC has failed to meet its burden of proof. The record clearly indicates that no attorney client relationship existed between [the attorney] and the [putative clients]. The record also contains sufficient evidence that [the attorney] had a reasonable belief that the funds he received were for [the actual client's] legal fees. Furthermore, [he] has refunded the money to [the putative clients] and has returned the watch.
November 30, 2009
"Couch Of Restitution"
The Michigan Attorney Discipline Board has affirmed findings of misconduct but increased the sanction from a 120 day suspension to 180 days. The attorney had pleaded guilty to a misdemeanor assault and battery in exchange for dismissal of charges of fourth-degree criminal sexual conduct in 2001. He failed to report the conviction to bar authorities. The conviction came to light when a former client filed a request for investigation of the attorney.
The Administrator filed charges relating to the failure to report the criminal matter, false statements on his bar dues statement that denied any such conviction and misconduct toward the complainant that involved improper touching, sexually explicit remarks and a comment that his fees could be paid on his "couch of restitution." The Administrator filed notice of intent to offer two similar acts toward vulnerable clients. The Administrator also offered evidence that the 2001 conviction (later set aside) involved improper sexual behavior directed at a client. The testimony of the 2001 victim was admitted to establish the circumstances of the offense. The "bad acts" evidence of the other two former clients also was admitted at the hearing.
The board here held that discipline could be imposed for the criminal conduct notwithstanding the order setting aside the conviction. The evidence of other acts was properly admitted:
The high degree of similarity of these separate accounts established [his] system of making sexual overtures to female clients who were seeking legal assistance in a domestic matter. These overtures occurred during a discussion of his legal fees. Both [victims] testified that [he] used the phrase "couch of restitution," and closed the blinds before making sexual remarks to them. The panel did not err in finding a commonality in [his] approach indicating a scheme, plan, or system and the panel did not err when it found that "prior bad acts" evidence was offered for a proper purpose...
The 180 day suspension will "ensure that [the attorney] is not permitted to resume his standing as a member of the profession unless he is able to establish his fitness by clear and convincing evidence." The Administrator has sought a suspension from one to three years. The attorney had a record of prior discipline.
The decision provides an interesting analysis of admission of evidence issues in the context of bar discipline. Many bar regimes (such as D.C.) have rules that allow for admission of evidence that permit consideration of information (such as hearsay) that might be excluded under civil and/or criminal rules.(Mike Frisch)
"Veritable Rampage" Draws Censure
A non-lawyer village court justice was censured by the New York State Commission on Judicial Conduct for a series of unrelated incidents. In one, he observed a driver allegedly fail to yield for a pedestrian, pursued in his own vehicle with the intent to make a citizen's arrest, induced the driver to pull over and displayed his town justice badge. While he recused himself from the charged matter, he was quoted about the case by print and TV reporters. In another matter, he had ex parte discussions with the mother of a defendant. In a third, he failed to disclose his close personal friendship with the Chief of Police and presided over matters in which the friend was a witness.
A dissent would remove him from the bench:
Notwithstanding this veritable rampage of serious misconduct, [the judge] escapes with a censure. Under normal circumstances I might quietly assent to the majority's lenience, even though I disagree, for fear the dissent would highlight a precedent which likely will give comfort to other wayward judges. But in this case I cannot for a singular reason: when [the judge] came before the Commission at the oral argument, he misrepresented his earlier sworn testimony and calculatedly changed his presentation to conform to the testimony of other witnesses.
An Arizona hearing officer rejected a laundry list of ethics charges but found that the accused lawyer (who had a single instance of minor discipline in 30 years of practice) had failed to competently handle an appeal. The underlying case (the Abad case) involved claims of over 100 plaintiff that mold exposure at their apartment complex had caused injuries. The hearing officer recommended public censure and three years probation with conditions that the attorney complete 20 hours of CLE on appellate procedure, report any appeal in his cases to the State Bar and associate with experienced counsel in any appeal. As to sanction:
The mitigating circumstances in this case are overwhelming. The sanction imposed by the trial judge [$750,000] was unprecedented. It has had a devastating effect on [the lawyer], his family and his practice. It is also important to consider that the Abad case is still on appeal. It is impossible to estimate if there is any harm to the clients until the matter is resolved.
Among the charges found unproven were incidents of what were called "rude" behavior. One incident took place during the deposition of one of the attorney's experts. The attorney said "Excuse me, Do you have a shit-eating grin on your face, Cindy?" (Mike Frisch)
Panel's Troubles No Bar To Sanction
The Tennessee Supreme Court has affirmed a hearing panel order imposing a one-year suspension in a matter involving four separate complaints. The court rejected a variety of claims, including that the sanction was excessive in light of the attorney's claim that he had acted negligently and that the "proceedings were procedurally flawed because a member of the hearing panel and a lawyer-witness were subsequently disciplined for professional misconduct in other matters."
The panel member was later suspended for failure to respond to a bar complaint. The witness was disbarred. The court found that the issue was not properly documented in the appeal but rejected the claim on the merits:
While we firmly reject [his] argument that his Panel was compromised by unlawful procedure, we conclude our analysis by emphasizing that we take seriously the integrity of attorney disciplinary proceedings in Tennessee. We regret those instances when attorneys standing in judgment of their peers are themselves subsequently found in violation of the rules that govern our profession. We aspire to a system where Panel members are of the highest ethical character and scrupulously refrain from even the appearance of professional misconduct in their own practice of law. Nonetheless, where a disciplined attorney may obtain two levels of review of the Panel's judgment, the subsequent discipline of a Panel member cannot automatically negate the outcome of all the prior disciplinary proceedings where that attorney served on the Panel. In this case...the Panel's judgment is independently supported by the decision of the other two Panel members, against whom [he] alleges no procedural improprieties.
Two Accidents Lead To Suspension
The Louisiana Supreme Court has imposed a suspension of a year and a day retroactive to an earlier-imposed interim suspension. While employed with the Attroney general's office, the attorney was involved in a minor car accident in the office parking lot. She was charged with DUI and self-reported the matter to disciplinary counsel. she went into a treatment program for alcohol and executed a contract with the Bar's recovery program.
Unfortunately, there was a subsequent accident in the Belle of Baton Rouge Casino parking lot. A breathalyzer test showed a bood alcohol content of .323%, more than four times the legal limit. Because the sanction was imposed effective in May 2007, the attorney may now petition for reinstatement. (Mike Frisch)
An "Unfortunate Absurdity"
The Vermont Supreme Court affirmed a finding that two attorneys had violated Rule 4.1 and imposed a private admonition. The facts:
The parties stipulated to the following facts. Respondent attorneys were partners in a law practice and represented a client in a serious criminal matter. During trial, a potential witness contacted them, claiming to have information that tended to show their client’s innocence. Respondents obtained a continuance until the following day to ascertain the witness’s potential testimony. They quickly arranged to interview the witness by telephone and to record the call. During the call, the witness asked respondents whether they were recording the interview. One respondent said “No,” and the other, attempting to distract the witness, added “She’s on speaker phone, so I can hear you.” The witness later filed complaints with the Office of Disciplinary Counsel against both respondents. The parties jointly recommended that the hearing panel conclude that respondents had violated Rules 4.1 and 8.4(c). The disciplinary charges were premised at all times solely on the act of misleading the witness about the recording, and not on the recording itself.
The court majority concluded that the knowing false statement about the recording violated the Rule. The violation was not premised on the surreptitous recording, which was lawful. The court concluded that the actions did not reflect on fitness to practice.
A concurring justice noted that the decsion does not deal with the complexity of undercover operations:
It seems at least unclear whether the judicial branch, through an ethical rule, might unconstitutionally interfere with valid, and even statutory, executive branch functions directed by attorneys supervising undercover discrimination, consumer fraud, and criminal investigations that require surreptitious taping and deceptive impersonations, including those authorized by warrant. See, e.g., V.R.Pr.C. 8.4(a) (declaring it misconduct for a lawyer to violate the rules “through the acts of another”); V.R.Pr.C. 5.3(b) & (c) (making a supervising lawyer responsible for investigator compliance with the rules and professional obligations of the lawyer). Related separation of powers questions, as well as due process and equal protection issues, arise over judicial curtailment of otherwise legal and valid tactics available to public defender investigators looking into criminal allegations against their clients.
Not presented in an actionable context in the instant appeal, such issues remain unresolved. Equally unresolved, then, is the potential for ethical violation by attorneys involved in law enforcement and criminal defense who, without lucre or malice, oversee entirely legal investigative strategies executed by staff or agents. Failure of the rules to recognize and allow for justified and necessary deception in the course of law enforcement and defense investigation is reminiscent of Secretary of State Henry Stimson’s foolish prohibition of diplomatic codebreaking between the World Wars on the high-minded premise that “Gentlemen do not read each other’s mail.” Common sense might dictate that such a blind principle, like Rule 4.1 found violated in the instant case, ignores the legal and objectively legitimate demands of the real world.
These points are raised only to lament the unfortunate absurdity of this violation and to emphasize the need for the committee to reconsider the literal application of Rule 4.1 to executive and defense investigations relating to law enforcement.
A concurring and dissenting opinion takes the majority to task for not finding a Rule 8.4(c) dishonesty violation for what is characterized as "bold-faced lying. " (Mike Frisch)