December 15, 2009
The web page of the Ohio Supreme Court reports:
The Supreme Court of Ohio today indefinitely suspended the license of [a] former Dayton attorney...currently residing in Indiana, for neglecting legal matters entrusted to him by two clients and subsequently failing to respond to inquiries or otherwise cooperate with disciplinary authorities during the investigation and prosecution of his misconduct.
The Court voted 7-0 to adopt findings by the Board of Commissioners on Grievances & Discipline that [he] neglected estate planning and property transfer transactions for which he had accepted fee advances, and falsely notarized signature lines on legal documents that his clients had not yet signed. The Court agreed that [his] acts and omissions were in violation of the state attorney discipline rules that prohibit neglect; conduct involving fraud, deceit dishonesty or misrepresentation; conduct prejudicial to the administration of justice and conduct that adversely reflects on an attorney’s fitness to practice law.
The Court also agreed with the board’s finding that by failing to respond to multiple written notices and other attempts to communicate with him by the Dayton Bar Association, or to cooperate with the disciplinary board during the prosecution of the complaint against him, [the attorney] violated the state bar governance rule that requires attorneys to cooperate with all disciplinary proceedings.
In imposing an indefinite suspension as the appropriate sanction for his misconduct, the Court wrote: “A lawyer’s indifference toward the process of discipline within the legal profession is entirely unacceptable. Indeed, we have held that an indefinite suspension from the practice of law ‘is especially fitting ... [where] neglect of a legal matter is coupled with a failure to cooperate in the ensuing disciplinary investigation.’ ... The single mitigating factor that a lawyer has no previous disciplinary record does not warrant a departure from this rule.”
The court rejected a claim of lack of notice as disciplinary counsel was entitled to rely on the address provided to the Bar, as well as telephone calls and a letter from the attorney that showed actual notice of the proceeding. An investigator had a conversation with the lawyer that was "combative and dismissive." The letter from the lawyer declined to meet the investigator as the effort would be "at best an inconvenience and at worst a huge waste of resources."
The court's opinion is linked here. (Mike Frisch)
December 14, 2009
Stipulation Voluntary, Discipline Recommended
A Louisiana hearing committee has recommended a one-year suspension with all but 30 days deferred in a matter involving three client complaints. The misconduct involved failure to escrow advance fees and return unearned fees after discharge. The attorney, represented by counsel, entered into a stipulation and was the sole witness at the bar hearing. When his testimony appeared to be "at odds factually with the Joint Stipulation" the committee questioned whether the attorney "had knowingly and intentionally entered into what was essentially an admission of both facts and guilt, thereby relieving the ODC from its burden of proving the formal charges by clear and convincing evidence." The committee then satisfied itself that the "plea" was entered into knowingly and voluntarily.
A lawyer member concurred with some harsh language:
Given the stipulations, the Committee had no choice but to find the Rules were violated as alleged and to recommend an appropriate sanction. I concur in order to point out that the Respondent might have benefitted from more capable counsel on the one hand and a less vindictive ODC on the other. I interpret the court's admonition on "overcharging" [in a 2003 case] as a general reminder to ODC to perform its function in a manner consistent with the purposes of lawyer disciplinary enforcement, rather than as an exercise of unrestrained prosecutorial power.
Loan Defaults And Suspension From PracticeThe Tennessee Supreme Court has entered an order concerning a proposed amendment to its rules "to establish new procedures to promote attorneys' compliance with repayment or service obligations under any of the student loan programs..." The proposed rule provides for disciplinary sanction for defaults on repayment or service obligations on notice of a final state or federal order and requires the chief disciplinary counsel to initiate the suspension procedures when notified of the default. (Mike Frisch)
Self-Interested Representation Draws Suspension
The Indiana Supreme Court has disciplined two attorneys for conflicts of interest. One was suspended for 120 days without automatic reinstatement for representing a client when the representation was materially limited by his self-interest; the other for 30 days for representing a client with interests directly adverse to another client.
The two lawyers were involved in a real-estate transaction. Seller had given control of property to Buyer, who collected rents. Buyer borrowed $11,500 from one of the lawyers. Because Seller still held the title, the subject property was used as collateral for the loan. When Buyer fell behind in payments, both lawyers sent letters concerning the situation. At that juncture, there was no attorney-client relationship between Seller and the lawyers.
Seller approached one of the lawyers (the junior one) about hiring the firm. The other lawyer agreed to undertake the matter and struck a deal with Seller to assume Buyer's obligations, conyinue making interest payments and pay off the principal when the sale was completed. It was also agreed that the firm would sue Buyer if necessary. When negotiations failed, the firm sued Buyer and negotiated an agreement with Seller to assume Buyer's obligation to pay the lawyers. Later, one of the lawyers filed suit against Seller for unpaid legal fees.
The court here held that the interests of one of the lawyers and Seller were materially adverse and that any discussion of the possible conflicts was not adequate. Both lawyers "lack[ed] insight into their misconduct and expressed no remorse for it." The different sanctions were imposed "because of [one lawyer's] lesser role in the misconduct and his junior position to [the other] in experience and within the Firm." (Mike Frisch)