January 2, 2010
Discipline Proposed For "High Profile" Attorney
From the January 2010 online edition of the California Bar Journal:
In an unusually scathing opinion, a State Bar Court judge recommended that high profile San Francisco attorney Philip Kay be suspended for three years, citing his “rude and disrespectful conduct” during three trials as well as false accusations, frivolous motions and unrelenting bad behavior. The suspension will take effect if the Supreme Court signs off.
Kay, who is well-known for his successful sexual harassment lawsuits, including a 1994 case in which a legal secretary won a $6.9 million jury verdict against a Palo Alto attorney, was charged by the State Bar with 19 counts of misconduct.
Judge Lucy Armendariz found him guilty of 16 counts, including charges of misleading the court, improper contact with jurors, splitting fees with a non-lawyer and committing acts of moral turpitude. But she reserved her most caustic comments for what she called Kay’s “insolent behavior.”
“Somewhere during his overzealous advocacy, he lost it,” Armendariz wrote in a 48-page ruling, “. . . not the cases, but his integrity, professional decorum, credibility and respect of the court.”
Kay, 56, said during his lengthy trial last spring that he expected to be disbarred. In an e-mail message, he accused bar prosecutors of lying about what various courts had ruled in opinions and orders regarding the cases in question. The suspension was recommended because “I asserted constitutional and statutory rights of attorney client privilege and work product before answering questions,” he added.
Most of the misconduct charges stemmed from two cases, a 1998 sexual harassment trial and 2002 retrial against Ralphs Grocery Stores and a sexual harassment trial against Ultrastar Cinemas in 2005. Kay’s clients won jury verdicts of $30 million in the Ralphs litigation and nearly $7 million in the Ultrastar case.
But throughout both trials, Armendariz said, Kay made gratuitous comments and offensive statements, was disruptive, repeatedly asked identical, almost identical or inadmissible questions despite the court’s warnings, and argued with the court. He was sarcastic or snide to witnesses, the judge said, badgering, berating or yelling at them. He made personal attacks on opposing counsel, including telling one jury that the other attorney lied, was unprofessional and violated ethical duties and court orders, Armendariz said. And he made false accusations against the courts, charging the judges were biased, unfair and intellectually dishonest and they committed judicial misconduct and distorted the record.
All these statements, the judge wrote, caused trial delays, interfered with the proceedings and “were made with the intent to deprive the defendant” of a fair trial and to appeal to the jury’s passion and prejudice.
At the conclusion of the first Ralphs trial, the court granted a mistrial based on juror misconduct. Ralphs also moved for a mistrial based on attorney misconduct, leading Judge Joan Weber to say, “I found Mr. Kay’s conduct throughout the case to be exceedingly unprofessional.” In particular, she cited Kay’s accusations that his opposing counsel committed perjury and violated her oath as an officer of the court. “I have never heard an attorney make such outrageous allegations in a closing argument against opposing counsel,” Weber wrote. “It sickened me to hear it.”
Following a second trial, the court granted a third trial on punitive damages, finding that the jury’s award was inflated due in large part to Kay’s misconduct.
After the jury in the Ultrastar matter awarded $6.85 million to Kay’s clients, Ultrastar moved for a new trial, arguing among other things that Kay’s misconduct unfairly prejudiced the defendants and necessitated a new trial. When a new trial was granted, the court included a tentative ruling that stated, “The jury’s excessive awards may be explained by Attorney Kay’s overall conduct.” (The case is currently awaiting another trial.)
Kay said the judges in the two cases claimed misconduct only after they were “reversed on appeal and disqualified . . . OR they lied in their testimony in the State Bar trial.
“This will create an uncertain and chilling effect by allowing unfit and disgruntled judges to lie about the record and impugn lawfully obtained civil rights verdicts, which have been upheld by the Court of Appeal and Supreme Court.”
Armendariz found that Kay failed to obey court orders, maintain respect to the courts, sought to mislead the jury and committed several acts of moral turpitude. His behavior wasted court time, delayed clients’ rights to receive their judgment awards and made the operation of the justice system “more burdensome,” the judge said.
She noted that the “unrestrained personal abuse and disruptive behavior that characterized (Kay’s) conduct in the underlying court proceedings” was repeated during his trial before the bar. After 11 days, his default was entered when he refused to take the witness stand, Armendariz said, and she ticked off a list of 15 behavioral sins she said Kay committed during the bar court trial.
Although the State Bar asked that Kay be disbarred, Armendariz said such a punishment would be unduly harsh. Kay did not engage in intentional deceit or commit fraud against his clients, nor did he breach his duty of loyalty. “In fact,” Armendariz wrote, “he zealously litigated several sexual harassment lawsuits and won; but he had also caused collateral damage to himself, to the administration of justice and to his clients without recognition of any wrongdoing.”
Allen Blumenthal, who prosecuted the case for the State Bar, said his office “is pleased that the court agreed with us about Mr. Kay’s unprofessional conduct. We believe this shows that attorneys, no matter how famous or successful, are going to be held accountable for their in-trial conduct and their obstruction to the orderly administration of justice.”Blumenthal said his office has not yet decided whether to appeal and seek Kay’s disbarment.
A brief web search revealed that the Legal Writing Prof Blog already had this story, with a link to the opinion. (Mike Frisch)
I Could Write A Book
The web page of the Massachusetts Board of Bar Overseers has a summary of a recent case:
On June 11, 2009, the respondent was convicted in the United States District Court for the District of Columbia of knowingly making and delivering a false certificate to the Federal Trade Commission in violation of 18 U. S. C. § 1018. The respondent was a senior vice president of his employer, and the certification involved the terms of a settlement between the respondent’s employer and another corporation concerning a patent. The respondent was sentenced to two years of unsupervised probation, fined $5,000, and required to write a book “reflecting upon the experience associated with the criminal behavior…so that others similarly situated may be guided in avoiding such behavior.”
A violation of 18 U. S. C. § 18, is a misdemeanor that qualifies as a “serious” crime as defined by S. J. C. Rule 4:01, § 12(3). The factual basis for the conviction was that the respondent intentionally submitted the certification but that he did not intentionally make the misrepresentations contained in the certification. The conduct did not involve the practice of law, and the respondent, who was a medical doctor, had never engaged in the practice of law.
On November 3, 2009, bar counsel filed a petition for discipline, the respondent filed an answer admitting to the allegations of the petition, and the parties filed a stipulation in which they agreed to the sanction of public reprimand. On November 9, 2003, the Board of Bar Overseers voted to sanction the respondent by a public reprimand.
The case is Matter of Bodnar decided November 11. BNET has an article about the criminal sentencing here. The criminal information and plea agreement can be found at this link on the Department of Justice web page. (Mike Frisch)
Would-Be Iowa Law Prof Litigant Responds
Posted by Jeff Lipshaw
Back in August, the ABA Journal ran a story on a Michigan lawyer and academic aspirant, Donald Dobkin, who was suing the University of Iowa Law School on an age discrimination theory. Usha Rodrigues commented over at The Conglomerate, and I opined as well, generating some debate about whether he had alleged the basis of a good claim. Mr. Dobkin has responded in a comment to the August post, and I thought it deserved not being buried back in the comments.
First, some context. As I read the reports, this is an age discrimination claim. Here were some of my comments back then:
Much as I think it's questionable policy, it doesn't take much to overcome the initial prima facie burden in an age case. You show you are over forty, you applied for the job, you were qualified, you were denied, and somebody under 40 got the job. But to eliminate the prima facie inference, all Iowa would have to do is satisfy a burden of production (not the burden of proof) to articulate a legitimate, non-discriminatory reason for the decision. At that point the claimant continues only by showing (through his or her burden of proof) that the stated reason(s) was a pretext (or cover up) for discrimination. The claimant has to prove two things: that the respondent’s proffered reason is false AND that the real reason for the respondent’s challenged action was discrimination or conduct otherwise prohibited by the ADEA. According to one of the news releases I saw, the complaint is based on his response to the posting in the AALS Placement Bulletin. I don't know which one, but it happens that the AALS posts a sample placement bulletin on its website, this from 2006, and it happens that Iowa had an ad in that issue that is very typical of these kinds of ads: "Consideration of any applicant for a faculty position may depend upon the current curricular needs of the College. Although considerable flexibility exists with respect to courses and other assignments, we are particularly interested in hiring people with interest or expertise in administrative law, business law, constitutional law, criminal law, disability/health law, immigration, intellectual property, law and economics, property, regulated industries, and taxation." Apropos of my comment about naivete, that's the classic laundry list, probably reflecting a myriad of conflicting views within the faculty about the school's top hiring priorities. As applicants and faculty members know, that's often not sorted out until the last debate among the whole faculty, and is one of the reasons I suggest in the "Retire and Teach" article that you not assume anything until you actually have a call from the dean extending you an offer.Here's Mr. Dobkin's comment, posted this morning (the text, as well as the metadata on the post, satisfy me that it really is Mr. Dobkin!):
Now having read all of the posts from this blog as well as many others it is readily apparent how one sided the comments are from members of the academy and just how insular the entire community appears. The posts reflect several errors which I shall note as follows. First, I can assure all that I am not naive. I spent 5 years at this academic endeavor since retiring from active practice. I published 5 law review articles in less than four years. I am halfway through a significant book on the US immigration mess. I presented papers several times at scholarly meetings. I spent a year at Johns Hopkins in the graduate program in PoliSci only to be told that it was a waste of time since nobody would hire a 60 year old. I am a graduate of a mega-elite law school, Northwestern, in case no one has noticed. I am a member of the Martindale Bar Register of Preeminent Attorneys (which I assume counts for nothing with all of you). I registered 4 years in a row with the FAR and never got an interview. I applied for visiting professorships and was rejected. My conclusion after going through all of the above is that unless one meets the academy's gold standard profile, as I call it, i.e. Harvard, Yale, Stanford J.D., Sp. Ct. clerkship and 1-3 years with the Justice Dept. your chances of becoming a law professor counts are slim. Long experience and knowledge as an accomplished professional counts for nothing in the hiring process. Quite amazing given the fact that law professors are given the awesome responsibility of preparing law students to become future lawyers. Accordingly, I concluded that I could not get a fair shot at landing a position under the paradigm currently utilized by the academy and that I needed to shift the playing field to one where I would have a chance, i.e the courtroom.
Assuming we can get to a jury, Iowa has a problem, because at the end of the day we will turn the trial into a question of who is more competent to teach immigration and administrative law. Is it the two younglings who had no practice experience in the field, had no or few publications in either field or myself--a candidate with 7000 cases under his belt, a graduate degree in law from an elite school, and more publications in the field than both candidates combined? Can you imagine a prospective juror, let's say a plumber from Iowa working 6 days a week to put his son through law school listening to all of this. Who do you think he is going to favor to teach his son to become a future lawyer--someone with mega practice experience and the scholarly credentials to boot--or the two neophytes who were offered the position?
Some comments below the break.It's not my place to defend the University of Iowa Law School, nor do I dispute the general idea that the legal academia could do a whole lot better balancing what legal academics want out of their careers with what needs to be done to educate new professionals (see Andy Perlman's gaze into the future). We are working on a transactional curriculum at Suffolk for just that reason. (I hope I haven't gotten insular or co-opted in my five years in the academy, but I'll claim at least equivalent real world practice bona fides, and something less than the gold standard of academic qualification!) My issue continues to be the trivializing of a serious issue in the guise of an trial, which Mr. Dobkin seems to concede needs a pretext of an age discrimination claim to get to the real issue he wants to try: whether he's more qualified or competent than a newbie prof to teach immigration law. Personally, were I litigating the case, I'd stipulate that there is nobody more qualified in the world to teach and write on immigration law than the plaintiff! That's not the issue, however.
The only question in the litigation is whether Iowa had a legitimate, non-discriminatory basis for not interviewing (much less hiring) a candidate whose admittedly superior qualifications are nevertheless restricted to an extremely narrow field, and one that is not untypically covered by adjunct professors. From my earlier comment: "As I said in "Retire and Teach", there doesn’t seem to be any way out of getting long experience without at the same time getting older. Moreover, is long experience is a valuable asset in the law school segment of the process by which lawyers get trained? I'm positive based on my own teaching adventures that it is. But it's not the only element in the management of law schools to be considered, and it doesn't necessarily have to be addressed by tenure track hiring, particularly when a separate assessment of scholarly impact and potential is part of that hiring."
I have to add that, in my view, the hoary strategy of "getting to the jury" to be able to nullify, emote, or punish beyond the strictures of the claim itself is an ethical issue that goes beyond pure legal ethics, but that's for another time.
The Origin of Black HolesI know the title sounds like this post is from Jeff and actually relates to the practice of corporate law. It is not, though I do link the New York Times. In fact it is my unrelated new year's post just to share my unfalsifiable theory that, across the universe, black holes come from various alien civilizations that have finally reached the stage of intellectual progress to be able to build Large Hadron Colliders advanced enough that they can recreate the conditions of the big bang. Black holes are basically a cosmic snuff film. [Alan Childress]
January 1, 2010
Happy New Year to everyone! Let's hope this year promises to be the best ever.
December 31, 2009
Judge Censured For Improper Recusals
The New York State Commission on Judicial Conduct has censured a Cattaraugas County judge for recusing himself in 11 matters not because of a legitimate basis in law but rather as a "tactic" and "weapon" to further his interest in obtaining legislative approval for a judicial pay raise.
The commission concluded that the misconduct was exacerbated by the judge sending a series of blast emails to other judges by hitting the "reply all" response to e-mail sent from a court web server. The e-mails encouraged judges to similarly recuse themselves and chided those who would not as "gutless" and "wimp[s]." The judge said that such judges needed to "grow some stones." Another e-mail called city judges "wusses." He also had referred to the state Assembly Speaker, a party to the pay raise litigation, as a "slug."
December 30, 2009
Reinstatement Petition Denied
The Pennsylvania Supreme Court has accepted the recommendation of its Disciplinary Board to deny the reinstatement petition of an attorney disbarred by consent in 2002. The petitioner had misappropriated funds from two estates and engaged in related dishonest conduct. He had moved to Florida and accepted a position at Keiser University teaching paralegal studies that included ethics instruction. He did not advise the school of his disbarred status and sought reinstatement in order to keep the job. His witnesses in the reinstatement proceeding also were not aware of the circumstances of the disbarment.
One issue related to providing required notice to his clients at the time of the disbarment. The board accepted testimony of a law office tenant that the petitioner had a defiant attitude regarding this obligation, quoting him as follows: "f**k the Board. I don't gave any clients to notify. I've transferred them all." (Mike Frisch)
Harboring Dog May Lead To Liability
If you live in Wisconsin and allow someone with a dog to live with you, you may well be liable for the dog's bite. The Wisconsin Supreme Court held yesterday that the owner of premises was the "harborer" or "keeper"of the dog in such circumstances and that summary judgment could not be granted to the defendant and her insurer:
In June or July of 2003, Ms. Seefeldt [the defendant] agreed to let Walter Waterman, an acquaintance of her daughter, move into her home when he was unemployed and needed a place to stay where he could keep his two dogs. Ms. Seefeldt had three of her own dogs and a large fenced backyard. Mr. Waterman never paid rent; they apparently had an informal arrangement that Mr. Waterman would help with some home repairs and housekeeping.
Ms. Seefeldt reported that when Mr. Waterman moved in, she was told that the dogs, Boo and Diesel, were friendly, but she also acknowledged that Mr. Waterman told her that Boo had recently nipped a six-year-old girl on the arm and frightened her. Ms. Seefeldt stated she was not told of any other incident in which Boo injured anyone.
On the afternoon of October 26, 2003, as Colleen Pawlowski walked in front of Ms. Seefeldt's home, she heard a sound like a door opening and saw Mr. Waterman's two unleashed dogs jump off the porch and charge her. Mr. Waterman chased the dogs and shouted to stop them but was unable to bring them under his control. Boo jumped up on Colleen Pawlowski and tried to bite her left shoulder, tearing her coat. The dog then bit at her left thigh and finally punctured her calf, causing Ms. Pawlowski to fall to her knee before Mr. Waterman was able to control both dogs. Although her shoulder and thigh were uninjured, Ms. Pawlowski did suffer puncture wounds to her calf.
Mr. Waterman then grabbed the dogs and held them as he offered to give Colleen Pawlowski a ride home, which she declined. Colleen Pawlowski observed that the skin was broken and told Mr. Waterman she would need to go to the emergency room. She then walked to the end of the street, to the home of a neighbor whom she knew, and asked the neighbor for a ride
At the time the attack occurred, Ms. Seefeldt was at home. She did not see the attack and did not learn of it until a police officer came to her door to investigate later that day. Following the attack, Mr. Waterman apparently proceeded to the grocery store, taking his dogs with him. When he returned to the house, Ms. Seefeldt asked him about the attack and Mr. Waterman relayed that when he had opened the door to leave for the grocery store the dogs had run into the street, toward Colleen Pawlowski, instead of running to the car. He told her that Boo bit Colleen Pawlowski and that he had offered Ms. Pawlowski a ride home or to the doctor, but that she declined the offer. Ms. Seefeldt told Mr. Waterman that Boo should be put to sleep, but she apparently did not seek further information about the incident. One to two weeks later, Ms. Seefeldt asked Mr. Waterman and his dogs to leave her home.
The court concluded:
...we conclude that Ms. Seefeldt was a statutorily defined owner of the dog under Wis. Stat. § 174.02 at the time of the dog bite. She was a person who harbored the dog. Her status as a harborer of the dog was not extinguished when the dog's legal owner took momentary control of the dog. We also conclude that the traditional public policy factors that may preclude tort liability do not bar recovery in the present case.
Charges Against Suspended Judge
The web page of the Indiana Supreme Court recently reported:
The Indiana Commission on Judicial Qualifications has filed disciplinary charges against suspended LaPorte Superior Court Judge Jennifer L. Koethe. The Commission alleges Judge Koethe deliberately omitted and misrepresented facts to police about a December 2008 shooting at her home. The Commission also alleges that she asked a police officer to destroy evidence relevant to the official investigation into the shooting. The Commission alleges those actions violate numerous canons of the Indiana Code of Judicial Conduct and the Rules of Professional Conduct.
The Commission’s investigation into Judge Koethe’s actions surround a December 22, 2008 shooting at her home where she received a superficial wound to the scalp. At the scene, Judge Koethe told police she accidently shot herself and did not know the location of the gun. Officers located two guns inside a laundry basket in the bedroom closet. Lab tests later showed one gun had been fired. At the hospital, Judge Koethe told detectives she and her husband had been arguing and she had retrieved the handgun because she wanted her husband to believe she was contemplating suicide. She maintained the shooting was accidental and said she thought the gun was unloaded. After speaking to detectives, she told a different police officer whom she knew well about a note she had written to her husband before the shooting. She then asked the officer, words to the effect of, “Can you make this go away? or “Get rid of it.” The note was later found by police in the bedroom closet.
During the police investigation of the shooting, Judge Koethe gave two taped statements. In the first statement, Judge Koethe deliberately omitted the fact that she wrote the note to her husband. She also claimed she thought the gun was unloaded because she had removed the magazine. However, in the second taped statement, Judge Koethe altered her account to track her husband’s initial statement to police. She stated that the gun had been unloaded when she first picked it up because the couple had unloaded the household guns several days earlier in anticipation of being out of the home. During her second statement, Judge Koethe denied any knowledge regarding the whereabouts of the gun and note after the shooting. Judge Koethe’s husband, Stephen Koethe, later admitted to police that he hid the gun and note in the bedroom closet at a time when Judge Koethe was in the room.
In May 2009 a grand jury returned a felony indictment against Judge Koethe for Attempted Obstruction of Justice. When the felony indictment was filed, the Indiana Supreme Court suspended Judge Koethe with pay. Having investigated the incident, the Commission has now filed three counts of judicial misconduct against Judge Koethe. These counts are separate from any criminal charges filed in an Indiana trial court.
The Commission’s “Notice of the Institution of Formal Proceedings and Statement of Charges” was filed with the Indiana Supreme Court on December 10, 2009. The seven-page Notice and Charging document is attached. The 2008 and 2009 Indiana Code of Judicial Conduct can also be found in attachments accompanying this press release. The charging document provides the circumstances and specific charges against Judge Koethe; generally, they include the following:
- Count I centers on Judge Koethe’s conduct in deliberately withholding or misrepresenting pertinent information during her taped statements. It alleges Judge Koethe violated Canon 2A of the 2008 Code of Judicial Conduct and Rule 1.2 of the 2009 Code of Judicial Conduct which requires judicial officers to avoid impropriety and to act in a manner promoting the public’s confidence in the judiciary.
- Count II centers on Judge Koethe’s request to a police officer that he destroy a handwritten note that was potential evidence in the investigation. It alleges Judge Koethe violated Canons 1 and 2A of the 2008 Code of Judicial Conduct, committed willful misconduct unrelated to the judicial office that brings the office into disrepute, and engaged in conduct prejudicial to the administration of justice.
- Count III centers on Judge Koeth’s request to a police officer that he destroy a handwritten note that was potential evidence in the investigation. It alleges Judge Koethe violated Rules 8.4 (b), (c), and (d) of the Rules of Professional Conduct. The rules require attorneys not to engage in criminal acts reflecting adversely on their honesty and not to engage in conduct involving deceit or misrepresentation.
Judge Koethe has the opportunity to file an Answer to the charges with the Supreme Court within twenty days of receiving the charges. After the Answer is filed or twenty days has passed, the Indiana Supreme Court will appoint three Masters (Judges) to conduct a public hearing on the charge that Judge Koethe committed judicial misconduct.
The Commission on Judicial Qualifications is the 7-member group that investigates alleged ethical misconduct by judges. Chief Justice Randall T. Shepard chairs the Commission. The Indiana Supreme Court has final authority over judicial discipline.
The court's suspension order is linked here. (Mike Frisch)
From the web page of the Ohio Supreme Court:
The Supreme Court of Ohio today suspended the license of [a] Cincinnati attorney...for two years, with the second year of that term stayed on conditions, for neglecting the cases of three different clients, failing to respond to repeated inquiries from those clients about the status of their cases or to refund their unearned fees upon request, and failing to cooperate with disciplinary authorities during the investigation of his misconduct.
The Court voted 6-1 to adopt findings by the Board of Commissioners on Grievances & Discipline findings that [the attorney] accepted fee advances from three clients but subsequently failed to perform promised legal services, file documents or appear at scheduled court proceedings, causing harm or prejudice to those clients including the issuance of warrants for the arrest of two clients.
The Court agreed with the disciplinary board’s findings that [his] conduct violated, among others, the state attorney discipline rules that prohibit failure to carry out a contract for professional employment; causing harm or damage to a client in the course of a professional relationship; failure to promptly pay or return funds that a client is entitled to receive; and engaging in conduct involving fraud, deceit, dishonesty or misrepresentation. The Court also found that [he] violated the state bar governance rule that requires attorneys to cooperate with all disciplinary investigations.
The Court’s per curiam opinion was joined by Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Maureen O’Connor, Terrence O’Donnell, Judith Ann Lanzinger and Robert R. Cupp. Chief Justice Thomas J. Moyer dissented, stating that because Larson engaged in a pattern of serious misconduct that exposed his clients to possible arrest, loss of driving privileges and fines, he would impose a two-year license suspension with no time stayed.
One matter involved a client who retained the attorney to assist her with a traffic citation. The attorney failed to address the matter and the client had her license suspended. The attorney's advice: "Drive safely."
The opinion is linked here. (Mike Frisch)
December 29, 2009
"A Highly Fluid, Rapidly Changing, And Perhaps Confusing Situation..."
An attorney who had exercised self-help in a dispute over fees with his former law firm was suspended for 90 days by the Wisconsin Supreme Court. The court accepted the referee's findings of the following facts:
These disciplinary proceedings arise from Attorney Maynard's billings and payments received for services he performed as a shareholder with his former law firm from August 1, 2005, through June 30, 2006. On August 1, 2005, Attorney Maynard joined with Attorneys Bruce McIlnay, James Button, and James Schmitt in the law firm of Maier, McIlnay, Schmitt & Button, Ltd. Soon after, the firm became known as Maynard, McIlnay, Schmitt & Button and used the acronym of MMSB or MMS&B. The referee found that the individuals understood the firm to be a corporation and regarded one another as shareholders. The referee found that when Attorney Maynard became a shareholder at MMS&B, he entered a highly fluid, rapidly changing, and perhaps confusing situation with little discussion among the other shareholders regarding their rights or obligations to the firm. The firm's shareholders testified generally that the money received from clients was "firm income"; the question of how the money would thereafter be divided was never discussed.
The referee found the shareholders intended to practice law in an arrangement through which expenses were to be incurred and paid by the corporate entity and revenues were to be paid to and distributed by that entity. The referee found:
In particular, [Attorney] Maynard did understand that, during the period of his association with the Firm, invoices for legal services were to be transmitted under the Firm's name, and paid to, and then distributed by the Firm, to its creditors and shareholders, in a manner to be determined.
Attorney Maynard's compensation plan was similar to the other shareholders' plans, consisting of a draw plus a monthly bonus. On or about January 1, 2006, Attorney Maynard's monthly compensation was substantially reduced. When Attorney Maynard announced in the spring of 2006 he would be leaving the firm, he was offered, and agreed to, the opportunity to remain with the firm "of counsel." The referee found that despite the absence of a formal signed agreement, from at least July 1, 2006, until the final parting of ways in February 2007, Attorney Maynard and the firm both understood he was no longer a shareholder but was to have "of counsel" status.
As of July 2006 there remained some open matters on which Attorney Maynard had worked as a shareholder but had not yet been billed. From July 2006 through October 2006 Attorney Maynard transmitted invoices to three clients for legal services he had rendered while he was a shareholder. The invoices all stated, "PLEASE MAIL YOUR PAYMENT TO: MMS&B, P.O.
BOX 253,IN THE ENVELOPE PROVIDED." GRAFTON, WI 53024
Without informing anyone connected with the law firm, Attorney Maynard applied for a post office box, inscribing the form with "John R. Maynard Principal" as the applicant and "MMS&B" as the name to which the box number was to be assigned. The address he gave for the box holder was apparently that of his personal residence. Other firm members did not know Attorney Maynard had opened this post office box. The referee found the invoices were misleading in that they indicated MMS&B would be receiving the money, while only Attorney Maynard knew of and had access to the post office box.
In response to the misleading invoices he sent, Attorney Maynard personally received and deposited into his personal checking account payments from clients totaling $7,776.84. Attorney Maynard did not inform the firm he had received these funds and the firm did not receive any of these funds. The firm did not learn of the post office box or of Attorney Maynard's receipt of the funds until much later as a result of its own efforts.
One check that Attorney Maynard received had been made out to the firm. Although no longer a shareholder but "of counsel," he endorsed the check and kept the proceeds. He had no express authority from the firm to do so; he made the endorsement and kept the money without the firm's knowledge. The referee found that by his testimony, Attorney Maynard acknowledged and understood the money billed for the work he performed as a shareholder was firm income to be divided among all the shareholders after the payment of overhead. The referee concluded that by receiving the funds for services performed while a shareholder, but not notifying the firm about the receipt of those funds and not delivering those funds to the firm or at least to a trustee, the court, or an arbiter, Attorney Maynard violated former SCR 20:1.15(d)(1), as charged...
The referee rejected the proffered defense that the attorney had been "drastically underpaid" and that the fees related to work he had done for his clients. (Mike Frisch)
Misuse Of Trust Account
The web page of the Ohio Supreme Court notes:
The Supreme Court of Ohio today imposed a 24-month suspension against the license of [a] Cleveland attorney...for engaging in a pattern of misconduct in which [he] commingled his own funds with client funds on deposit in his law office trust account, and improperly used the trust account as a personal bank account and operating account for an extended period in order to avoid collection actions by his creditors for unpaid judgments and delinquent taxes.
In a 6-1 decision, the Court voted to adopt findings by the Board of Commissioners on Grievances & Discipline that [the attorney] engaged in fraudulent trust account practices and deliberate deceptions between January 2006 and May 2007. Specifically, he] violated the rules of professional conduct that require an attorney to maintain a trust account in which only client funds are held, to avoid commingling of his personal funds with monies held for clients, and to keep full and accurate records of all funds deposited to and withdrawn from his trust account. The Court also found violations of the disciplinary rules that prohibit attorneys from engaging in conduct prejudicial to the administration of justice and conduct that adversely reflects on an attorney’s fitness to practice law.
The Court adopted the disciplinary board’s recommended sanction of a 24-month license suspension, and imposed as pre-conditions for reinstatement the requirements that [the attorney] complete six additional continuing legal education hours in law-office management and accounting and fully pay or provide evidence that he has entered into settlements of 12 court judgments currently outstanding against him totaling nearly $25,000.
The majority opinion, authored by Justice Judith Ann Lanzinger, was joined by Chief Justice Thomas J. Moyer and Justices Evelyn Lundberg Stratton, Maureen O’Connor, Terrence O’Donnell and Robert R. Cupp. Justice Paul E. Pfeifer dissented, stating that he would impose a two-year suspension with the second year stayed on conditions.
The court's decision is linked here. (Mike Frisch)
MAP, TAP And LOMAP
An Arizona Hearing Officer has concluded that an attorney violated provisions of probation that required him to participate in the Bar's MAP (member assistance), TAP (trust account assistance) and LOMAP (law office management assistance) programs. The lawyer had served a 60 days suspension with probation on reinstatement.
The hearing officer recommends a 90 day suspension followed by probation. When the attorney is reinstated, he must get with the various programs.
The attorney owes $13,100 in parking fees and fines to the City of Tucson. The probation had included a payment obligation on this debt. The hearing officer recommends that the attorney make "reasonable efforts" of at least $100 per month on this obligation. (Mike Frisch)
Very High Probability
The Indiana Supreme Court has imposed a 30 day suspension of an attorney for participating in an court-approved divorce agreement that the client's husband was not the father of her child notwithstanding DNA testing that showed a "very high probability" that he was. When the attorney drafted an agreement that the husband would have no rights as to the child, the husband's lawyer proposed that the agreement deny paternity. The attorney agreed. The husband's lawyer has been suspended for his role in the proceedings.
The matter came to light when the client applied for public benefits and the county attorney moved to intervene in the divorce. The court considered as mitigation the absence of a selfish motive and cooperation with the disciplinary proceeding. (Mike Frisch)
A case decided last week by the District of Columbia Court of Appeals involved charges against an attorney who practices principally in California. The charges involved his handling of an immigration matter. The court adopted the recommended sanction of the Board on Professional Responsibility of a 60 day suspension with a conditional stay of a portion of the suspension, but rejected the board's interpretation of the duty to return the client file when the representation ends.
The board had found no violation because the file had been returned in five days. The court disagreed. Rather, the attorney had "repeatedly denied requests and actively obstructed the efforts of his former client and successor counsel to obtain the file." The client need only ask for the file once. As to the question of a Rule 1.16 violation:
it cannot be said that respondent took "timely steps" to do anything but further hinder his former client from securing alternative representation in this pressing matter.
The court also held that an expert called by Bar Counsel must identify "specific instances of deficiencies" in the representation to sustain a charge of incompetent representation.
The attorney will serve an actual suspension of 30 days, 30 days stayed with probation that will require CLE courses. The attorney was ordered to pay restitution of $4,500 to the former clients, with interest from the date of the deportation order.
The case is In re Thai, No. 08-BG-868, decided December 24 and can be found through this link. Mike Frisch)
December 28, 2009
First Amendment And Jury Questionnaires
In the criminal case involving O.J. Simpson, the Nevada Supreme Court has held that there is a limited First Amendment right to public (i.e. media) access to information about the jury pool. The court held:
This petition for extraordinary writ relief challenges the district court’s denial of petitioners’ motion to intervene in a criminal trial for the limited purpose of accessing juror questionnaires. In reviewing this petition, we must address two issues of first impression. First, we must resolve whether petitioners’ motion to intervene in a criminal case to seek access to juror questionnaires is procedurally proper. Second, we are asked to determine whether juror questionnaires used in jury selection are subject to public disclosure. This second inquiry requires an analytical balance between two equally important constitutional rights: the First Amendment right of the public and the press to access criminal proceedings, and the Sixth Amendment right of criminal defendants to receive a fair trial.
After weighing all relevant interests, we conclude that limited intervention by the public or the press is an appropriate procedural mechanism by which the public or press may assert its First Amendment interests in a criminal case. We determine that the district court committed error in denying petitioners’ motion to intervene.
We further conclude that juror questionnaires used in jury selection are, like the jury-selection process itself, presumptively subject to public disclosure. The presumption of openness may be overcome, however, only if the district court identifies a countervailing interest to public access and demonstrates, by specific findings, that closure is necessary and narrowly tailored to serve a higher interest. Because we conclude that the district court neither articulated specific findings to show that concerns about juror candor superseded the First Amendment’s presumption of open proceedings in jury selection nor considered reasonable alternatives to a complete closure of the questionnaires, we grant petitioners’ petition and direct the district court to release all blank and completed juror questionnaires to petitioners.
We recognize that because the underlying criminal trial concluded and the jury rendered a verdict, this remedy might be considered moot. Nonetheless, we consider this petition because the primary issue—whether juror questionnaires used in jury selection are subject to public disclosure—is of a type that is capable of repetition but evading review.
Spoon River Anthology
The Illinois Administrator has filed a disciplinary complaint alleging that an attorney improperly communicated with a represented party. The representation involved a property dispute that resulted in a shift in the course of the Spoon River:
In Fulton County, Illinois, the Spoon River formed the boundary line between a parcel of land owned by the Chatterton Family Trust ("the Chatterton Trust") on the west side of the river and adjoining parcels of land owned by the Estate of Wilhelmina E. Morey and the Wilhelmina E. Morey Testamentary Trust (collectively "the Morey Estate") and the N. Grace Johnson Trust ("the Johnson Trust") on the east side of the river.
As of 2005, the above-described portion of the Spoon River had shifted its channel eastward.
As a result of the Spoon River shifting its course, a dispute arose as to the boundary line between the property of the Chatterton Trust and the properties of the Morey Estate and the Johnson Trust. In or about October, 2005, Respondent agreed with Marilyn G. Riley, who was the executor and the trustee for the testamentary trust of the Morey Estate, and Judith A. Montgomery, who was the trustee for the Johnson Trust, to jointly represent the Morey Estate and the Johnson Trust in attempting to resolve the dispute. At or about that time, Respondent learned that attorney Andrewe W. Johnson represented the Chatterton Trust and its trustees, including Greg Chatterton, in the matter.
On November 18, 2005, Respondent sent a letter on the subject of the boundary line issue to Greg Chatterton at his home address. In the letter, Respondent proposed changes to the legal description of the Chatterton Trust’s parcel, and she enclosed a survey and other material. Respondent also sent a copy of the letter to Johnson.
At no time did Respondent obtain the prior consent of Johnson to communicate with Greg Chatterton or any trustee of the Chatterton Family Trust on the subject of the boundary line issue.
As a matter of interpretation of the charged rule, the sending of a copy to counsel does not negate the violation. Rather, it simply provides proof that the sending lawyer was aware that the party had a lawyer. (Mike Frisch)
One Will, Two Suspensions
An attorney went to the hospital to visit a 95 year old client who had suffered a broken hip. The client wanted to have a will drawn that would make the lawyer his sole beneficiary and name the lawyer's son as contingent beneficiary. The lawyer consulted another lawyer (respondent) to draft the will. Respondent did so without by inserting the information provided by the lawyer into a form will without consulting with the client or ascertaining competence. Respondent's paralegal met the lawyer at the hospital with the will, which the client executed in the paralegal's presence after the lawyer met privately with the client. Shortly after the will was signed, the lawyer instituted guardianship proceedings based on claims that the client was incapacitated. The client later consulted independent counsel and left his estate to Indiana University.
The Indiana Supreme Court imposed a 120 day suspension of the respondent. The court expressed concern about respondent's attitude after the charges were brought, noting that he displayed a "troubling lack of insight into his duty of undivided loyalty to the client." Respondent claimed that his decision not to meet the client was in order to minimize legal fees.
The lawyer who had procured the will has been suspended for three years.(Mike Frisch)
No Details Required
An attorney appointed to represent a client in a post-conviction proceeding may withdraw from the matter based on her assertion that continued representation would involve violation of disciplinary rules without filing an Anders-type pleading that details the problem, according to a 3-2 majority opinion of the Vermont Supreme Court. The motion to withdraw had cited rules relating to frivolous claims ans candor to the court. The court holds:
An Anders-type explanation justifying counsel’s withdrawal is not required in the PCR context. The withdrawal prerequisites called for in Anders are designed to vindicate a defendant’s constitutional right to counsel, 386 U.S. at 744, and, as the United States Supreme Court has recognized, a petitioner has no constitutional right to counsel in civil PCR proceedings. See Pennsylvania v. Finley, 481
551, 555 (1987) (rejecting notion that prisoners have a constitutional right to counsel when mounting collateral attacks upon their convictions). Absent an underlying constitutional right to counsel in state post-conviction proceedings, there is “no constitutional right to insist on the Anders procedures which were designed solely to protect that underlying constitutional right.” Id. (“Anders established a prophylactic framework that is relevant when, and only when, a litigant has a previously established constitutional right to counsel.”); see also People v. Breaman, 939 P.2d 1348, 1351 n.2 (Colo. 1997) (en banc) (citing FinleyAnders brief). U.S.
Rather than being grounded in the constitution, petitioner’s right to counsel is created, defined, and limited by statute. See In re Gould, 2004 VT 46, ¶ 13, 177 Vt. 7, 852 A.2d 632 (noting that Public Defender Act sets forth statutory right to counsel in PCR proceedings even though providing such assistance is not constitutionally compelled). Before 2004, the PDA guaranteed an indigent litigant the right to representation in any post-conviction proceeding “that . . . the needy person considers appropriate.” 13 V.S.A. § 5233(a)(3) (1998) (enacted 1971, No. 161 (Adj. Sess.), § 6). In light of this language, we held that the state was obligated to provide PCR counsel upon the litigant’s request, regardless of the merit of the claims raised in the PCR or the fact that representation was not constitutionally compelled. Gould, 2004 VT 46, ¶ 13.
There are two dissents. From Associate Justice Johnson:
To provide petitioner with competent and effective assistance of counsel and to preserve this Court’s role as protector of his right to counsel, this Court should deny counsel’s motion to withdraw and require her to file a brief on petitioner’s behalf. Neither the majority’s solution of rubber-stamping the attorney’s conclusion that the case lacks merit, nor Justice Dooley’s suggestion to require an Anders-type affidavit from counsel adequately resolves the conflict between indigent petitioner’s need for effective and zealous representation and counsel’s own professional obligation to refrain from bringing frivolous cases. While I concur with the majority’s conclusion that an Anders-like procedure is not constitutionally required or particularly effective in protecting an indigent litigant’s rights, I cannot agree with the majority’s holding that assigned counsel may withdraw at any point in the course of representation based solely on counsel’s own, unreviewable conclusion that the case is not warranted by existing law or nonfrivolous argument. The grave consequences of a post-conviction proceeding and the critical requirement of robust representation at this proceeding require more. To solve this problem, I would instead require counsel, once appointed, to remain in the case and to advance her client’s claims notwithstanding that she deems them to be without merit. Because I would deny counsel’s motion to withdraw, I dissent.
CLE Suspensions In Ohio
From the web page of the Ohio Supreme Court:
The Commission on Continuing Legal Education today issued sanctions against 356 attorneys who failed to comply with the continuing legal education requirements for the 2009 reporting period.
Included in today’s sanctions were 68 attorneys who were also suspended from the practice of law for failing to comply with their continuing legal education requirements.
Attorneys are required to complete a minimum of 24 hours of continuing legal education every two years. Judges are required to complete a minimum of 40 hours of continuing legal education every two years.
Ohio’s attorneys are split in two groups according to the alphabetical listing of their last name for reporting purposes, with one group required to report by the end of every even-numbered year and the other required to report by the end of every odd-numbered year. The sanctions issued today are for attorneys who were required to complete their hours by Dec. 31, 2008, and file their report by Jan. 31, 2009.
The Commission on Continuing Legal Education is created by Gov. Bar R. X and administers the continuing legal education requirements imposed on attorneys and judges pursuant to that rule and Gov. Jud. R. IV. The Commission also accredits programs and activities that satisfy Ohio's mandatory CLE requirements.
View the complete list of attorneys sanctioned today.