February 20, 2009
Two More Years
An attorney who had suspended for 18 months was suspended for an additional two years by the Pennsylvania Supreme Court. While on suspension, the attorney had appeared as counsel for her sister in a criminal case and failed to advise the judge and prosecutor of her suspended status. She sought a continuance of the case by falsely advising the court that a retained attorney could not appear due to illness. In fact, the lawyer had not been retained.
The discipline here was imposed pursuant to consent of the parties. The natural desire to help a family member was considered as a mitigating factor. (Mike Frisch)
The Iowa Supreme Court affirmed a judgment in a case brought by the Phi Delta Theta fraternity against the University of Iowa and its Dean of Students. The fraternity had been charged with hazing and alcohol violations. A former pledge was a summer resident at the frat house and installed a recording device in a basement meeting room that was off-limits to non-members. He secretly recorded what in my (long passed) day was known as a "hell session." He provided the tape to the dean and it was used in proceedings brought by the school against the fraternity. The frat eventually agreed to having violated alcohol policies and the hazing charges were dropped.
The frat sued the State, the school and the dean. The court here finds that the frat has standing to sue and had a reasonable expectation of privacy in the basement. The use of the recording in the proceedings brought by the school violated Iowa law and provided a basis for civil liability. However, the award of punitive damages and attorney fees was vacated.
At some point the frat had been placed on "province" probation. The court does not distinguish this sanction from "double secret" probation. (Mike Frisch)
Donations Gladly Accepted
A rather remarkable case imposing bar discipline for prosecutorial misconduct was decided today by the Iowa Supreme Court. The accused attorney had served as the elected county attorney for Cass County. He induced a significant number of illegal plea bargains that included donations to a sheriff's office fund. The fund was used to purchase firearms and also paid the attorney's cell phone bills as well as bought him a car. He served in a dual role of prosecutor and probation officer, requiring donations from those he supervised in order to avoid probation revocation. He also improperly disposed of seized firearms.
His defense? Such conduct by county attorneys is "commonplace." He had testified below as follows: "You may not like it...but it was what was happening...to sit here and act like I was some wild cowboy ignoring the law and doing whatever it was that I wanted to do isn't a fair characterization of the situation, I don't think."
The court isn't buying. Noting two prior instances of discipline for misconduct in office, the court imposed an 18-month suspension. (Mike Frisch)
Conversion Finding Upheld
The Illinois Review Board has recommended a two-year suspension with restitution of an attorney in connection with his representation of a driver and passenger in an accident case. The misconduct is not for conflict of interest between the clients; rather, he was found to have converted medical payments by taking a contingency fee contrary to his agreement with the clients. He had deposited the payments into an account with a negative balance and used some proceeds for personal expenses.
The board rejected the claim that the conduct did not amount to conversion:
According to Respondent, his contracts with Kinnie and Harper entitled him to one-third of all funds collected. According to his clients, Respondent agreed that his fees would come only from the amounts recovered from the person responsible for the accident. The Hearing Board determined that the testimony of Kinnie and Harper was the more credible, and its findings must be given great deference, as it was able to observe the witnesses’ demeanor and judge their credibility. Additionally, as the Hearing Board noted, the testimony of Respondent’s clients was supported by the contracts themselves, in which Respondent crossed out and initialed the provision stating that Kinnie and Harper agreed to pay him "a sum equal to 33 1/3% of the gross amount collected for medical payment."
The Hearing Board’s findings that Respondent engaged in conversion and failed to deliver funds to his clients to which they were entitled were not against the manifest weight of the evidence. The fact that his clients signed the settlement statement does not indicate in any way that they agreed to a modification of their contracts, as Respondent contends. Harper testified that at the time she endorsed the checks, she was not aware that it was for payment of medical expenses. Kinnie did not question the division of funds, as she trusted Respondent’s judgment and believed he would do it correctly. The betrayal of that trust by converting his client’s funds tended to defeat the administration of justice and bring the legal profession into disrepute, in violation of Supreme Court Rule 770. Additionally, we conclude that the Hearing Board’s determination that Respondent engaged in dishonest conduct by taking fees from his clients’ payments for medical expenses, after he had specifically given up that right in his contracts with both women was not against the manifest weight of the evidence.
A restitution requirement was imposed:
Restitution is appropriate when there is an improper benefit to the attorney. The facts show that Respondent took one-third of the payments from State Farm for Kinnie and Harper’s medical expenses, after expressly eliminating any right to do so from his contracts with both women. That money must be returned to his clients in order to keep him from profiting from his unethical behavior. Although Respondent told Kinnie that the remaining third of the funds would be paid to the clinic, it was not.
The evidence showed that both women owed more to the clinic than the $1,666.66 that the clinic theoretically was going to receive, and they owed payment for services rendered by other medical providers, as well. It is clear that the Hearing Board did not consider the testimony that the $1,000 Respondent gave Stafford for gambling purposes was payment of his clients’ medical expenses to be credible, and therefore, Respondent wrongfully retained the final third of the State Farm checks as well. As there is no evidence of any medical liens having been filed in this case, restitution should be paid to Kinnie and Harper.
Where I come from, I'm proud to say, a lawyer gets disbarred for this type of misconduct. (Mike Frisch)
February 19, 2009
It Adds Up To Proposed Disbarment
An Illinois hearing board has recommended that an attorney be disbarred for misconduct that includes filing frivolous litigation, unwarranted attacks on a judge and failure to appear in proceedings resulting in two warrants for his arrest. The attorney is also subject to a proposed two year suspension in another pending bar matter. In that case:
In the proceedings before the Hearing Board, as Respondent admitted to the misconduct alleged in the complaint and the Hearing Board found that Respondent had engaged in the misconduct charged, the primary issue addressed was appropriate discipline. In arriving at its recommendation, the Hearing Board considered in mitigation that Respondent had not been previously disciplined and he suffered from a variety of medical conditions including bipolar disorder, attention-deficit disorder, personality disorder, poly-substance abuse and dependence issues, sleep apnea, morbid obesity, hypertension, and diabetes. In aggravation, it noted that Respondent had not fully complied with certain requests of the forensic psychiatrist assigned by the Administrator to evaluate him, had failed to present any character or employment documentation evidence, and had failed to offer his own testimony or explanation regarding these and other matters. The Hearing Board also expressed concern that the deferral program in the criminal cases would not be completed by Respondent until after the conclusion of the Hearing Board proceedings and there was a possibility that the charges could be reinstated.
Here, disbarment was deemed appropriate:
Respondent’s misconduct here was not limited to his unfounded attacks on Judge Pantle, but also included his other false statements regarding certain facts in the case, his institution of a frivolous lawsuit in an effort to improperly attack the result in the case, and his failure to cooperate with the Administrator’s investigation into the matter. Thus, although his misconduct all arose in connection with the same dispute, it was not an isolated incident but involved multiple instances of improper and unprofessional behavior.
In addition, as discussed, there are significant aggravating factors present here, including Respondent’s prior serious misconduct, the outstanding warrants for his arrest, and his failure to participate in the disciplinary process. His failure to respond to the charges or participate in his own disciplinary proceeding is especially troubling since it is indicative of a complete lack of professionalism on his part and has deprived us of the ability to make any meaningful assessment of his current fitness to practice law. Respondent’s serious misconduct, coupled with these significant factors in aggravation, convinces us that a sanction of disbarment is warranted in this case.
No Suspension, No Domestic Cases
An Arizona hearing officer accepted a tender of admissions from disciplinary counsel and an attorney charged with misconduct and has recommended no censure and/or reprimand and probation for not less than one or more than two years.
The attorney had been charged with a laundry list of ethics violations arising from "a highly charged domestic relations case wherein she represented the wife." The misconduct involved overzealousness in an area of law that she not familiar with "coupled with her emotional attachment to her client's cause..." The hearing officer reviewed sealed information and decided that the bar prosecutor's decision not to pursue more serious charges was an appropriate exercise of discretion.
One notable aspect of the recommendation is a requirement that the lawyer never again represent clients in domestic relations or Family Court matters. (Mike Frisch)
Competing With Client Draws Long Suspension
The Florida Supreme Court rejected as unduly lenient a referee's proposed 90 day suspension and probation for an attorney who had engaged in a serious conflict of interest and imposed a suspension of 18 months with fitness. The lawyer represented a company that sold and repaired component aircraft parts and also ran an aircraft leasing business. The lawyer joined forces with a departed employee and was engaged in a competing business:
...[the lawyer] represented [the client] at the same time he represented...his own company. Both companies performed the same services and functions and had the same pool of potential customers and potential suppliers. Litigation, contract disputes, and deal negotiations with one pool or the other would have been the most foreseeable legal activities on behalf of the other client...[t]he inherent, direct conflict was exacerbated by the fact that[he] owned one of the companies; his loyalties were not only divided, but unequal.
The court also rejected a proposed 200 hours of pro bono services because the rules do not provide for such a sanction. Probation "is usually imposed when the [attorney] suffers from some kind of drug or alcohol addiction or mental illness, such that ongoing monitering...is desirable." (Mike Frisch)
After Glow Golf
A woman alleged that she had suffered a permanent brain injury when struck by a golf ball while playing "glow golf" at a golf club's "Annual Nite Lite Outing." Glow golf "involves golfing at night while using glowing golf balls and other glowing devices, such as tiki torches and glow necklasses, to illuminate the golf course and the partcipants. The "event began once darkness fell." the ball that caused the injury was struck by another woman playing in the same foursome. The injured golfer sued the golf club and two women's golf associations as well as the person who had hit the ball. The trial court granted summary judgment to all defendants.
On appeal, the New Hampshire Supreme Court affirmed. The court found that the doctrine of assumption of risk was properly applied to the owners or occupiers of land and the inherent risks of sports participation. The court rejected the contention that the defendants had "unreasonably increased the inherent risks of the sport of glow golf as opposed to golf generally."
...[the]record testimony indicates that glow golf has its own equipment, distinct from that of golf, and that it is marketed at trade shows and in industry magazines...we find no error in the trial court's characterization of the sport at issue as glow golf as opposed to golf.
What about the fact that its played in the dark and claims of inadequate lighting?
The record shows that glow golf is played in the dark... [plaintiff's] claims of negligence related to darkness or the players' inability to see fail to establish that these conditions unreasonably increased the inherent risk that [she] would be struck by a shot while playing in the dark.
The court also affirmed findings that consumption of alcohol (part of the festivities) had not played a role. (Mike Frisch)
Judges And Politics
A report from today's TwinCities.com, courtesy of the North Dakota Supreme Court web page, on a federal district court decision concerning political activities of judges:
Wisconsin judges can join political parties, endorse partisan candidates for office and solicit campaign donations after a federal judge struck down rules prohibiting those activities.
In a decision released Tuesday, U.S. District Judge Barbara Crabb found the rules do little to advance an independent judiciary and violate judges' First Amendment rights to free speech.
Wisconsin Judicial Commission Executive Director Jim Alexander said he was disappointed and consulting with Attorney General J.B. Van Hollen on whether to appeal. The rules can't be enforced in the meantime.
Observers said the decision will open the door for parties to get more involved in judicial elections and make it easier for judges to raise campaign cash. They predicted that most judges, however, would not join parties.
The decision might accelerate the state's trend toward expensive, special-interest-fueled, nonpartisan-in-name-only judicial campaigns, said Mike McCabe, of the Wisconsin Democracy Campaign.
"It's one more way that our judicial system will be heading down a path that I think ultimately only serves to undermine public confidence," said McCabe, whose group advocates campaign finance reform.
Chief Justice Shirley Abrahamson, who is running for re-election in April, said she would not join a party or personally raise money because she doesn't want to raise questions about her fairness.
"I have First Amendment rights, but I don't have to fully exercise them if I don't want to" she said.
Note that there is a case before the U.S. Supreme Court that will address the disqualification implications of donations to judicial campaigns. (Mike Frisch)
An attorney who had defaulted in New York on charges of misconduct involving a sex assault on a client was disbarred by the Appellate Division for the Second Judicial Department. The court summarized the allegations and contentions of the attorney:
All of the allegations of the petition are based entirely upon the complaints of a former client of the respondent. She alleges that the respondent sexually assaulted her during an after-hours meeting at his law office in the Independence Mall. The respondent admits that he represented his former client in or about 1983 in connection with a charge of driving while under the influence. He otherwise has no specific recollection of her and denies all of the alleged acts of illegal conduct. The respondent raised the affirmative defense of laches and violation of due process in that the delay in prosecuting the disciplinary charges against him for more than 22 years constitutes actual prejudice. The Board found that the former client's reporting of the assault nearly 22 years after the fact was not unreasonable under the circumstances and there was no unreasonable delay in the ODC's initiation of disciplinary proceedings thereafter.
A hearing on the allegations had been conducted in Delaware, leading to an order of disbarment:
A hearing was held in the Delaware proceeding on July 11, 2006. The [Delaware] Board considered the respondent's disciplinary history, which consisted of private admonitions in 1984 and 1995 for falsely testifying in support of a claim for fees and failing to disclose a material fact to the Family Court regarding his client when such disclosure was necessary to avoid assisting a criminal or fraudulent act by a client. He was suspended for three years in 2005 for sexually harassing female clients and employees, both verbally and physically, during the past five to ten years, thereby establishing a pattern of illegal activities. The Board also considered, in mitigation, the respondent's substantial record of public and community service and his participation in the Delaware State Bar Association, chairing the Delaware State Bar Family Law Section and the Adoption Committee of the American Bar Association Family Law Section. On balance, however, the Board concluded that the mitigating factors should not operate to reduce the sanction of disbarment.
Those Pesky Nonrefundable Fees
The New York Appellate Division for the Second Judicial Depaartment has publicly censured an attorney for neglect and charging a nonrefundable retainer. The court found misconduct on the following facts:
Charge four alleges that the respondent employed an unenforceable and improper retainer containing a provision rendering Hector Sanchez's initial payment nonrefundable, in violation of Code of Professional Responsibility DR 2-110(a)(3), 2-110(b)(4) and 2-106(a) (22 NYCRR 1200.15[a], 1200.15[b], 1200.11[a]). In July 2005, Hector Sanchez retained the respondent to represent him in a lawsuit against Five Towns Mitsubishi and Chase Auto Finance regarding a disputed auto sale. The retainer agreement contained a flat fee provision of $3,250. The agreement provided, in relevant part:
"We will require an initial retainer payment of $3,250.00 upon the signing of this agreement. This retainer payment is not refundable, even if the case is settled or otherwise disposed of before the full payment is applied in the monthly billing statement."
The court found mitigation in the neglect as the attorney had been preoccupied in caring for his gravely-ill spouse. (MIke Frisch)
February 18, 2009
A Member Of The Club
The controversy generated by the District of Columbia Bar's attack on Avvo continues. Carolyn Elefant has questioned whether her mandatory bar dues should be spent pursuing litigation that she opposes. An Avvo -related web page has posted the following threatening letter from the Bar's counsel. I wonder, as did Carolyn, whether the Bar should be trying to shut down the flow of accurate and publicly-available information and whether my dues should fund that effort.
I have been a dues-paying member of this Bar for 34 years and was a bar employee for over 17 years. It has been my experience that the Bar is run by and for the insiders (consisting of the large firms who wish to share in the leadership and the entrenched Bar executives). If you do not subscribe to the views of and show fealty toward the leadership, you simply do not exist. Any of my attempts to bring an issue or an injustice to the Bar's attention (such as the forced removal of a member of the Board on Professional Responsibility for the crime of focusing on the public interest) have met with stony indifference at best and "how dare you" at worst.
I remain a member because I must but am constantly reminded of the wit and wisdom of Groucho Marx.
See this related post from Simple Justice. (Mike Frisch)
Cell Phone Unauthorized Communication With Opposing Party
An order entered by the Supreme Judicial Court of Maine suspended an attorney for six-months and one day. In one instance of misconduct, the attorney was talking to his client about an agreement with the opposing party. The client was using the speakerphone function of his cell phone and the opposing party ( the client's spouse) was able to hear the lawyer. The court found that the unauthorized communication rule was violated: "He was not a passive bystander, rather he actively facilitated, furthered, and participated in the process. Indeed, when the document was presented...[he] was in communication with the parties through the speakerphone function of [his client's] cellular telephone."
There was other misconduct including failure to advise a client to obey a court order and false statements to the Grievance Panel: "His 'cat-and-mouse' approach to Assistant Bar Counsel's questioning discloses a profound lack of candor and a clear willingness to mislead counsel and the tribunal." He also made "intemperate remarks suggesting unethical conduct on the part of the Board's counsel, and collusion between a judge and an attorney" but the court found that these were not knowing falsehoods because he "may actually, sincerely believe these assertions-- an equally disturbing possibility, but not actionable under the rules." (Mike Frisch)
Billing Fraud Suspension
The South Carolina Supreme Court imposed a nine-month suspension of an attorney who had returned to South Carolina after a decade of practice based on his admission in New York and New Jersey. He joined a firm as an associate and the arrangement did not work well. The firm's management committee "formalized an 'exit strategy' which would provide for [him] to continue working at the firm for a period of time in order that [he] could pursue other employment." A review of his timekeeping records found improper entries and discrepencies. He was discharged. The firm's investigation found a "folder containing materials used to 'doctor' the firm's reimbursement forms" and led to a bar complaint.
A hearing led to the following finding:
Turning to the facts of the instant case, Respondent over a period of one year engaged in a pattern of conduct that was deliberate, purposeful, deceitful, and fraudulent. Not only did Respondent overcharge clients for his time, he also altered documents to falsify reimbursement expenses. Furthermore, unlike [a prior case], Respondent never self-reported his misconduct to the ODC. Accordingly, we conclude that Respondent’s conduct warrants a sanction of definite suspension of nine months.
The court agreed with disciplinary counsel that a harsher sanction than the 180 day suspension proposed by the hearing panel was appropriate. The attorney must establish his character and fitness prior to reinstatement. (Mike Frisch)
February 17, 2009
Client Names Are Confidential
Posted by Alan Childress
Ed Poll of LawBizBlog writes that client names are confidential, such that a lawyer's marketing of his or her past successes is basically different from how other occupations can tout their experiences and connections. (Ed would be reluctant to reveal past clients even with client consent, though I am not opposed to it with such consent.) In this marketing area, "The legal profession is different... our approach must be different."
The confusion in real life that prompts such reminders seems to be the imperfect overlap between the ethical duty of confidentiality (under MR 1.6) and the evidence rule of privilege (usually under state substantive law). Just because a client's name or existence may not be privileged (e.g., state courts that make lawyers reveal drug kingpin clients and the source of fees) does not mean that the information can be voluntarily revealed as an ethical matter. I go round and round on this distinction every year with university counsel's office when they ask us to name outside clients for COI disclosure purposes. I say I cannot reveal that without consent (whatever the privilege rule would say as to allowing a court to order me to name them), though of course I can certify that none of my clients has links to the university or interests adverse to it.
Ed uses the case of Quinn Emanuel and its marketing on a confidential settlement agreement as an example of the problem here.
ABA Offers New Resource To Follow Legal Malpractice Law and Issues Covering 50 States
Posted by Alan Childress
Paul Koning of the Dallas office of K&L Gates passes along this ABA announcement and link.
The ABA Litigation Section's Professional Liability Litigation Committee is proud to announce the launch of its 50 State Survey of Legal Malpractice Law. The Survey is a free, internet-accessible compendium of state-specific articles detailing the elements, defenses and key issues regarding claims against lawyers. Because legal malpractice laws vary significantly from state to state and often involve special doctrines affecting limitations and proof, this centralized resource promises to be invaluable to professional liability lawyers, legal malpractice insurers, and trial lawyers in general. The Survey is the only known collection of its kind, and is available without charge to all members of the Litigation Section. To access the 50 State Survey of Legal Malpractice Law, visit the home page of the Professional Liability Litigation Committee or click here.
Paul, shown right, added that "members of the legal ethics community might be interested in a project I have been working on for some time as Co-Chair of the ABA Professional Liability Litigation Committee." (Yes, I would think so!) The other co-chair is Pamela Bresnahan of Vorys DC. Paul also provided as an example his own extensive chapter on Texas law, coauthored with Brett Basden: Download legalmalpracticetexas.pdf. Thanks, Paul.
Bar Discipline Discovery
In an appeal of the Office of Lawyer Regulation ("OLR") from a referee's order granting an attorney charged with misconduct "full access" to OLR's internal case files, the Wisconsin Supreme Court held the the order was overbroad and therefore quashed the subpoena and remanded to the referee for further proceedings.
The bar case involves charges against both the prosecutor and defense counsel in a negligent homicide by motor vehicle case. The defense lawyer counterclaimed to the ethics charges by challenging the OLR's handling of the prosecutor's case. The court rejected the claim that, once there is a proceeding, all documents in the OLR files become public. However, the court also rejected the OLR's contention that all of its files are per se confidential.
The court concludes:
It is apparent from the record, the referee’s order, and Attorney Sommers’ arguments to the court that Attorney Sommers questions whether the OLR provided the Preliminary Review Committee (PRC) with all relevant evidence related to the allegations of misconduct against him and against Attorney Humphrey. Much of the evidence in question appears to be documentary evidence that Attorney Sommers himself provided to the OLR. Attorney Sommers wishes to know if the PRC was provided with this material. He notes that SCR 22.06(1) provides that “[t]he director shall submit investigative reports, including all relevant exculpatory and inculpatory information obtained and appendices and exhibits, if any, pursuant to SCR 22.05(1)(d) to the chairperson of the preliminary review committee. As the referee’s order implies, there is also some concern that certain documents may have been misfiled in the Humphrey file. Attorney Sommers also suggests that the OLR may have intentionally or negligently failed to include certain documents or evidence in the materials submitted to the PRC, particularly pertaining to the third count of the complaint against him. Essentially, he argues that he has the right not to be accused in bad faith, that a failure by the OLR to have complied with SCR 22.06 would evidence bad faith, and that only by reviewing the OLR’s files can he assess the state of the record evidence the PRC used to determine cause to proceed.
However, it does not appear that a specific, narrowly-tailored written discovery request was made for a copy of the documents the OLR provided to the PRC. SCR 22.16(1) provides that proceedings before a referee shall follow the rules of civil procedure. While we recognize that discovery in disciplinary matters may be conducted more informally than in circuit court proceedings, here, it appears that Attorney Sommers did not file any formal written motions or discovery requests requesting access to the OLR investigative files. It appears that the respondent’s discovery demands were often delivered orally rather than committed to writing. We cannot know, and we decline to speculate how the OLR would have responded to specific discovery requests. However, we are simply not persuaded that the referee should have unfettered access to the OLR’s files in this matter to search for documents that might have been obtained though normal discovery practices.
No Ethical Violation
In an appeal of a reprimand of a lawyer found below to have failed to diligently represent a client charged with a speeding ticket, the Wisconsin Supreme Court found no violation and dismissed the disciplinary matter:
Attorney Ginsberg disputes the referee’s conclusion that he violated SCR 20:1.3. Attorney Ginsberg asserts that that he acted with reasonable diligence and promptness in this matter. He explains that typically if a district attorney rejects a proposed stipulation he would receive notice of a trial date or, alternatively, the file might remain dormant. He provided evidence, including the expert testimony of Attorney Gerald Mowris, that permitting some delay in resolving a traffic case is usually in the client’s best interest. Moreover, the record supports his assertion that his failure to receive either notice that the proposed stipulation had been accepted and executed or notice of entry of judgment was exceedingly unusual. We acknowledge the OLR’s point that Attorney Ginsberg could have made “one phone call inquiring as to the status of his proposed stipulation” or he could have checked the Wisconsin Circuit Court Access Program available on the Internet. Ideally, Attorney Ginsberg would have checked the status of his proposed stipulation. However, given this unusual circumstance in which notice of entry of judgment was not provided to either Attorney Ginsberg or his client, we decline to hold that Attorney Ginsberg’s conduct in this case violated his ethical obligation to act with reasonable diligence and promptness in representing a client. We conclude that the OLR has failed to establish by clear and substantial evidence that Attorney Ginsberg violated SCR 20:1.3.
Parking Lot Incivility
A Michigan attorney was reprimanded based on a hearing panel finding that his "post-hearing conduct in a courthouse parking lot, where he used intemperate language, constituted professional misconduct..." The attorney and the Grievance Commissioner agreed to the reprimand in light of the hearing panel's findings. The attorney must also pay the costs of the disciplinary hearing, amounting to almost $3,000. (Mike Frisch)
"Worst Pun of All Time?"
So debates the University of Pennsylvania blog on language (though their commenters' pedantic debate is over whether it is a mondegreen not a pun), at this link, with hat tip to Minor Wisdom. It even beats something I said in the fifth grade when Mrs. White taught us things about Oktoberfest: I replied, "You can lederhosen to water but you can't make them shrink." [Alan Childress]