Sunday, February 28, 2010
A recent opinion of the Legal Ethics Committee of the District of Columbia Bar holds:
A lawyer representing an incapacitated person with a surrogate decision-maker should ordinarily look to the client’s chosen surrogate decision-maker for decisions on behalf of the client and accord the surrogate decision-maker’s choices the same weight as those of a client when the client is unable to express, or does not express, a contrary view. A lawyer may not substitute her judgment for the judgment of the surrogate decision-maker when the surrogate decision-maker is acting within the scope of the power afforded to her by law, was selected by the incapacitated person before becoming incapacitated, and is not engaged in conduct creating a risk of substantial harm or acting in a manner that would otherwise require a lawyer to withdraw from representation of a client acting in the same manner. If the surrogate decision-maker is engaged in conduct creating a risk of substantial harm or acting in a manner that would otherwise require a lawyer to withdraw from representation of a client acting in the same manner, then the lawyer may take protective action including seeking a substitute decision-maker. The lawyer may not withdraw because a withdrawal will substantially harm the client and no grounds for a prejudicial withdrawal under Rule 1.16(b) exist.
The opinion notes that such representation "can be difficult." (Mike Frisch)
Posted by Jeff Lipshaw
I was flipping through the New York Times Sunday Business section this morning, and saw this article about the upcoming labor negotiations between the motion picture and television industry and the various unions and guilds (writers, directors, actors), complete with picture of my law school classmate, Carol Lombardini (left), the new president of the Alliance of Motion Picture and Television Producers.
Just another member of the moderately amazing Stanford Law School class of 1979, whose members have included, in addition to all the top flight lawyers, among other things, law professors, the dean of the University of Chicago law school (who hired Barack Obama), a deputy cabinet secretary, the publisher of a major newspaper, the State Department legal officer in Berlin responsible for liaison with Rudolf Hess in Spandau Prison, the CEO of one of the largest construction companies in the world, the winners of the 1979 Stanford Trivia Bowl, the Notre Dame athletic director, and the parents of two different University of Michigan undergrads named Matt.
Friday, February 26, 2010
The Michigan Attorney Discipline Board affirmed a panel order reinstating an attorney suspended for an indecent exposure conviction. There had been a series of disciplinary orders involving similar conduct. The board majority noted that there had been testimony presented that was "highly critical" of the petitioner. The judge and prosecutor in the criminal case disagreed concerning his fitness to practice (the judge had unfavorable views). There had been evidence of treatment for his personal issues and the board majority noted that the panel below had acted favorably on the petition.
Three board members disagreed, noting a pattern of conduct and expressing the view that the reinstatement decision "must be based on more than a guess and a hope that a transformation has occurred." (Mike Frisch)
Posted by Alan Childress
We will get back to our tape delay coverage of that exciting Third Quarter in a little while, but currently some of the big plays are being made by Jonathan Vilma, and he is not from the United States, so we will await further coverage of that magnificent Third Quarter. Wait, I am hearing that Vilma is from Haiti, so we do care about him, not to show any plays of his, but let's go to a feature story where we exploit his family tragedy using a special hushed tone. Here is Kathy Lee with a background story on that. Now we are back, but we just learned that two American players do not like each other very much, and that one is "bummed' about the other's attitude, so we will return to the Third Quarter in time to pick it up near the end of the quarter, after first showing you these interviews where each of the players, both American, take back the more extreme things they said on twitter about each other, and profess how it is a healthy competition and a friendly rivalry.
You know, I wonder what Joseph Addai, who is actually American, would think it would be like to live as a wizard at the time of the dinosaurs. Better have that wand handy! Let's cut to a feature about the new Miramax movie, out in April, called the Wizards of Crustacea. That was great, and we start the Fourth Quarter, or did about an hour ago, with New Orleans in the lead but Indy surging. Check out this background story by Chris Collingsworth on downhill skiier Bode Miller, even though Chris never skis and is new to watching the sport. OK, back from that -- and we learned that Bode does care, every eight years or so, thanks Chris -- we go down to the field, LIVE!, to interview Tracy Porter, from the United States, who we learned has made some remarkable play on a Payton Manning pass before the game ended. You know, Manning has a brother who plays football, named Eli even though he was raised in America, and he also has one at home that used to, before injury. Some say Cooper Manning may have been the best athlete in that storied family. Here is the cast of Jersey Shore, interviewing Cooper's dad Archie about Cooper's injury. Now here's the Situation: Cooper is from New Orleans, like his brother Eli, and we have this amazing feature on how New Orleans is using high school football on Friday nights to ease the pain of tragedy.
And Porter did indeed make a crucial interception, we are told, which tennis great Martina Navritilova, who became an American citizen, will show us later anchoring our late night show. In a flashback set to Nickelback. Hey, now Porter is Never Going To Be Alone on Bourbon Street. Wait. More on that Wizards-Rex movie after this commercial break from McDonald's, where you don't just get a toy if you eat a kid's meal, it's called a "prize." Gotta love that, a prize for eating fat. We're all winners. But NFL athletes eat at McDonald's too so you know it's athletic for you.
In an action between two attorneys fighting over the division of a contingent fee, the New York Appellate Division for the First Judicial Department affirmed the lower court's 93-7% split:
The client was injured while a passenger in a car that was involved in a one-car, out-of-state accident. Outgoing counsel argues that having performed the work necessary to obtain the $25,000 offer under the driver's policy, which exhausted the limits of the driver's policy, it performed all the preparatory work that was necessary for incoming counsel's $1,470,000 settlement of the underinsured claim under the client's policy. We reject that argument and find ample support in the record for the Special Referee's implicit finding that outgoing counsel's work contributed very little to the underinsured settlement...
While outgoing counsel prepared a summons and complaint against the driver and sent it to a process server, the next day, after the driver's carrier offered its $25,000 policy and confirmed that there was no excess coverage, outgoing counsel instructed the process server not to serve the driver, and advised the client that the offer should not be accepted without first obtaining the underinsured carrier's consent so as not to jeopardize the underinsured claim that outgoing counsel intended to make. It was incoming counsel, however, that contacted the underinsured carrier's adjuster, who had the authority to give such consent, unlike outgoing counsel, that merely contacted the driver's broker. And it was incoming counsel that resolved the adjuster's concern with underinsured coverage issues, such as whether the driver was a member of the client's household and whether there was additional coverage on other vehicles owned by the driver's family, both conditions to obtaining the underinsured carrier's consent to settlement of the claim against the driver.
Furthermore, unlike outgoing counsel's requests for medical records, incoming counsel's requests were effective, and unlike outgoing counsel, incoming counsel substantiated its investigation of the possibility of a products liability case. Although the action commenced by incoming counsel against the driver may not have been necessary, and although incoming counsel initially sought the wrong type of arbitration against the wrong insurer, these do not appear to have involved undue expenditures of time. We note the parties' stipulation that incoming counsel was to have no claim to the one-third contingency fee on the $25,000 offer.
The Maryland Court of Appeals has vacated a criminal conviction and remanded the matter for a new trial in a case involving an e-mail from the defendant to the website for Governor Martin O'Malley. In evaluating wehether the email constituted a threat, the court below erred in its jury instructions:
...because it did not define the term "threat" or instruct the jury about how it would determine whether the e-mail communication consituted a threat. In this regard, the court should have instructed the jury as to the requirement of a true threat, which is distinguihed from constitutionally protected speech.
Here is the message:
O'Malley, getting ready to lose my wife after 24 years of marri[a]ge. 3rd construction co. & 2nd house I am going to lose because of no good fucking government like you and pieces of shit like you. If i [sic] ever get close enough to yoy[sic], I will rap [sic] my hands around your throat and strangle the life from you. That will solve many problems for true AMERICAN'S [sic]. Maybe you can send your MEXICAN army after me. I HOPE YOU DROP DEAD BEFORE I GET TO YOU. I WOULD HATE TO TO [sic] LOSE MY LIFE BECAUSE OF A PIECE OF SHIT LIKE YOU. FUCK YOU TRULY
The e-mail generated a police investigation. The defendant was cooperative and told police he wanted to take it back as soon as he hit the "send" button. He was nonetheless sentenced to six months for the conviction.(Mike Frisch)
Thursday, February 25, 2010
The Florida Supreme Court disbarred an attorney who had been suspended for 91 days in 2004 for inappropriate conduct toward an unrepresented party and dishonesty. The attorney has not been reinstated but while suspended had used her Florida Bar card to enter a jail to visit a friend. She tried to convince the friend to sign a lease granting her use of a car. The friend refused. The attorney then went to the impound lot and used the bar card to obtain access to the friend's car. The friend had to institute a replevin action as a result.
The court rejected the referee's proposal for lesser discipline and agreed with Bar Counsel that disbarment was the proper sanction for contempt of the order of suspension. (Mike Frisch)
The web page of the Ohio Supreme Court reports:
The Supreme Court of Ohio today imposed a one-year license suspension against [a] Cuyahoga County Juvenile Court Judge...with the full term of suspension stayed on conditions, for violations of the Code of Judicial Conduct arising from two separate incidents in which [he] was convicted of disorderly conduct as a result of physical altercations with a girlfriend.
In today’s 7-0 decision, the Court adopted findings by the Board of Commissioners on Grievances & Discipline that [his] conduct was in violation of ethical canons that require a judge to uphold the integrity and independence of the judiciary, to avoid impropriety and the appearance of impropriety in all of his activities, and to respect and comply with the law and act at all times in a manner that promotes public confidence in the judiciary.
In its per curiam opinion, the Court noted that [he] admitted the charged misconduct and stipulated that a dependency on alcohol was a significant factor in the incidents that resulted in his criminal convictions.
While the disciplinary board recommended a conditionally stayed six-month suspension based on [his] successful completion of a two-year recovery contract with the Ohio Lawyers Assistance Program (OLAP) and other mitigating factors, the Court wrote: “We accept the board’s findings with respect to aggravation and mitigation; however, a sanction more rigorous than the board’s recommendation is required for the harm caused by respondent’s improprieties. We therefore order that respondent be suspended from the practice of law in Ohio for one year. The suspension is stayed, however, on the conditions that respondent complete a two-year probation in accordance with Gov.Bar R. V(9), fully comply with the terms of his current OLAP contract, completely refrain from the use of alcohol, and commit no further violations of either the Code of Judicial Conduct or the Rules of Professional Conduct. If respondent fails to comply with the conditions of this stay, the stay will be lifted, and he will be suspended from practice for one year.”
The court's opinion is linked here. The first incident involved an argument that started in a car after dinner and drinks. The argument escalated at a gas station and led to the arrest of both the judge and girlfriend on disorderly conduct intoxication charges. The second incident took place about ten months later in their condo. (Mike Frisch)
The District of Columbia Court of Appeals today amended a decision entered on February 4. The court remanded a criminal case where the trial court had erroneously denied a claim of ineffective assistance of counsel without an evidentiary hearing.
One notable aspect of the case is that both his trial and appellate counsel (one and the same person) and an attorney he retained to handle his appeal were later disbarred. The retained attorney never entered an appearence in connection with the appeal. Trial counsel moved forward with the appeal but did not raise issues concerning his own alleged ineffective assistance. (Mike Frisch)
The New York Appellate Division for the Fourth Judicial Department recently disbarred an attorney convicted of two counts of criminal contempt in the second degree: "The charges arose from his contact with a former girlfriend in violation of an order of protection." He had failed to respond to an order to show cause why discipline should not be imposed. The court concluded that the offense was a serious crime.
This link should take you to the court's web page. The case is Matter of Green, decided February 11. (Mike Frisch)
The National Organization of Bar Counsel has given Case of the Month status to the last substantive 2009 decision in an Indiana bar discipline matter as a means of paying tribute to Don Lundberg. An excerpt:
The December featured Case of the Month has been chosen for its symbolic significance
more than for the lawyer misconduct outlined in the decision. It is a relatively intricate case
involving a conflict of interest in a real estate matter, but it really has larger meaning. It is the
last truly substantive professional responsibility disciplinary decision to issue in Indiana in 2009.
For almost two decades, the Indiana lawyer disciplinary authority has been in the
forefront of bringing critical and often remarkable professional responsibility cases to the
attention of its state supreme court. This is solely due to the fact that Donald R. Lundberg, the
Indiana Supreme Court Disciplinary Commission Executive Secretary who took control of the
disciplinary agency in December 1991, has an innate understanding of what type of cases should
be brought to a licensing court, how those cases should be argued, and why it is sometimes
necessary to educate the practicing bar regarding difficult professional responsibility topics
within the context of a disciplinary case. His service prior to becoming a lawyer regulator hinted
at why he exercised the degree of discretion that he did while in office. Prior to his work at the
Indiana Supreme Court, he served for fifteen years in a number of positions for the Legal
Services Organization of Indiana, Inc., and ultimately became director of litigation. It was
probably all of those years in the trenches that provided him with the insights and judgment that
motivated him to file and plead certain cases in order to create a body of exemplary substantive
ethics law in Indiana.
The post also explores other highlights from Don's career in bar discipline.
It is nice to know that there is life after serving as disciplinary counsel. (Mike Frisch)
Wednesday, February 24, 2010
The North Dakota Supreme Court affirmed the grant of summary judgment to the defendant in a legal malpractice case. The court concluded that the absence of expert testimony was fatal to the claims:
Davis [the former client] claims Enget and Slorby [the lawyers] were negligent by representing him in a field of law beyond their expertise, by inadequately preparing for trial, by failing to secure relevant medical evidence and by failing to notify him of his lost appeal to this Court until after the time to petition for rehearing had expired. Davis further alleges that as a result of these shortcomings, defense witnesses were allowed to lie on the stand, his own reputation was tarnished, an adequate record was not preserved for appeal and, ultimately, he lost his medical malpractice action. No competent, admissible evidence in the record supports Davis' claims. Davis opposed Enget's motion for summary judgment with nothing more than his own affidavit. While he may have a firm belief that Enget and Slorby's representation was insufficient, his lay opinion cannot supplant that of an expert because the nature of the alleged errors are not so egregious or obvious that a layperson could perceive them.The district court did not err by granting summary judgment to Enget because Davis failed to provide the district court with expert testimony indicating Enget and Slorby's representation fell below the applicable standard of care. The district court's grant of summary judgment to Enget is affirmed. (citations omitted)
The case against Slorby had been dismissed due to improper service of process. (Mike Frisch)
The Oklahoma Supreme Court granted a petition for reinstatement of an attorney who had resigned because she no longer had an active Oklahoma practice. The court considered the following facts:
The record before us establishes the following facts. Petitioner graduated from the University of Oklahoma School of Law in May of 2001. On October 2, 2001, petitioner was admitted to membership in the OBA. Petitioner practiced law in Oklahoma until June 15, 2003, when she moved to Madison, Wisconsin because her husband had graduated from medical school and had accepted a residency position at the University of Wisconsin. On September 30, 2003, petitioner was admitted to the practice of law in Wisconsin after successfully passing its bar examination. On December 13, 2004, petitioner voluntarily resigned from membership in the OBA because she was no longer practicing law in Oklahoma. Her resignation was accepted and her name was administratively stricken from the roll of attorneys in Oklahoma.
Petitioner practiced law in Wisconsin from September 30, 2003 until June 24, 2008. On June 24, 2008, petitioner moved to Gainesville, Florida, because her husband had accepted a one-year position there. Because petitioner knew that she would be in Florida only a short time, she did not seek admission to the practice of law there. After her husband took at position in Oklahoma, petitioner moved back to Oklahoma on July 15, 2009.
Petitioner owes no money to the OBA, except for the costs of these proceedings as discussed below. In 2008 and 2009, petitioner had thirty-one hours of continuing legal education credits in Wisconsin and one hour in Oklahoma. She also reviewed the OBA's journals.
Several letters were submitted and several witnesses appeared on petitioner's behalf, all of which praised petitioner. The recommendations addressed her ethics, moral conduct, and competency. Based on the letters and testimony, petitioner has shown that she possesses the moral character and competency to be readmitted to the practice of law in Oklahoma.
The record further shows that the Client Security Fund has not expended any money on behalf of petitioner, see Rule 11.1(b) of the RGDP, and that petitioner has agreed to pay the costs of the investigation and the hearing on her petition for reinstatement. See Rule 11.1(c) of the RGDP. The OBA has requested costs be assessed in the total amount of $661.04.
We recently reported that a disciplinary sanction of a public reprimand with terms had been imposed in Virginia against an attorney for misconduct in testimony as an expert witness. The order has now been posted and is linked here.
The testimony was offered in a practicioner disciplinary hearing before the Board of Immigration Appeals during the cross-examination by the Bar Counsel for the Department of Justice, Executive Office of Immigration Review, Board of Immigration Appeals. The transcript of the questions and answers is attached to the determination. An objection to the line of questioning concerning bar complaints against the witness had been made and was overruled. (Mike Frisch)
The web page of the Ohio Supreme Court reports:
The Supreme Court of Ohio today suspended the law license of [a] Cleveland attorney...for two years, with the second year of that term stayed on conditions, for settling a personal injury lawsuit without the knowledge or permission of her clients, forging the clients’ signatures on the settlement checks and converting the proceeds of $3,800 to her own use.
In a 7-0 per curiam opinion, the Court adopted findings by the Board of Commissioners on Grievances & Discipline that [the attorney's] actions violated, among others, the state attorney discipline rules that prohibit conduct involving fraud, deceit, dishonesty or misrepresentation; conduct prejudicial to the administration of justice and conduct that reflects adversely on an attorney’s fitness to practice.
As conditions for staying the second year of her license suspension, the Court ordered that [the attorney] must complete a course of treatment for stress management; complete 12 hours of continuing education training in law office, caseload and time management; complete one year of monitored probation and repay her clients $1,300 she charged them in fees.
The attorney settled an accident claim without client consent, forged signatures and converted the proceeds. The attorney later advised the clients that suit had been filed and was pending. The clients thereafter retained counsel who discovered the true circumstances. The court noted that its board had found mitigation in the attorney's circumstances at the time of the misconduct.
The opinion is linked here. (Mike Frisch)
Tuesday, February 23, 2010
The New York Court of Appeals has issued its decision in the dispute over judicial compensation. The court holds:
The consitutional arguments raised in these judicial compensation appeals are premised upon, among other things, alleged violations of the New York State Constitution's Compensation Clause and the Separation of Powers doctrine is aimed at preventing one branch of government from dominating or interfering with the functioning of another co-equal branch, we conclude that the independence of the judiciary is improperly jeopardized by the current judicial pay crisis and this constitutes a violation of the Separation of Powers doctrine.
Justice Smith dissented, sharing his "colleagues' dismay at the Legislature's behavior in dealing with, or rather failing to deal with, judges' salaries..." but not agreeing "that any of its actions or inactions is unconstitutional." (Mike Frisch)
Monday, February 22, 2010
Posted by Jeff Lipshaw
Anita Bernstein (Brooklyn, left) is a guest blogger over at our sister Torts Prof Blog and has an interesting take on whether and how to mix professional responsibility into the torts class. (HT: Sheila Scheuerman)
The Illinois Administrator has filed a disciplinary complaint against a lawyer alleging misconduct in the course of prosecuting a dental malpractice case involving a tooth extraction allegedly gone wrong. There had been an investigation by the Department of Financial and Professional Regulation that was the subject of a motion in limine that had been granted. The complaint alleges that the attorney ignored the court's order in the following exchanges:
Before reconvening the jury, Judge Drazewski cautioned Respondent as follows:
THE COURT: All right. Are we crystal clear with respect to no reference in any way shape or form to the Illinois Department of Professional Regulation (sic) in any way shape or form? Mr. Ginzkey?
MR. GINZKEY: [No response].
THE COURT: I want to make sure, because no sanctions have been requested nor is the court considering same at this time. But to the extent that there would be a violation of the order in limine the court would consider the next step if appropriate. So I’m making sure at this time Mr. Ginzkey that you're aware of what the court's ruling is.
MR. GINZKEY: My hearing is fine, Your Honor.
THE COURT: All right, thank you counsel.
Judge Drazewski reconvened the jury, and Respondent resumed his questioning of [the opposing client] Dr. Koe. Respondent’s questions included the following:
Q: Doctor, I’m going to ask you another yes or no question. Do you think you can answer it yes or no?
A: I can answer yes or no but I don’t know whether I can give you a yes or no answer if you don’t ask me the question and I don’t understand it.
Q: Doctor, it's true, is it not, that an inspector asked to see your sterilization process and you refused to let her do that the month after this occurrence?
MR. BRANDT [opposing counsel]: If the court please?
A: I don't—
THE COURT: Don't answer the question. The objection is sustained and we'll take up this matter outside the jury's presence after they have left for the day. Please disregard the question. That is not only to the witness but to the jury.
Q: Doctor, didn't you write a letter and sign it saying exactly that?
MR. BRANDT: Court please—
Outside the jury’s presence, Judge Drazewski announced that it found Respondent to be in direct contempt of court and would impose a fine in the amount of $500.00.
The complaint quotes the contempt finding:
The record reveals that Ginzkey's actions in this case were not made in good faith. Instead, he was unhappy with the trial court's ruling regarding the admissibility of the IDFPR information and simply chose to disregard that ruling. Despite numerous admonitions from the court to desist, he continued to try to get information before the jury that the court had barred. The best that can be said of Ginzkey's position is that he really believed the court's ruling was erroneous. However, as we explain, Ginzkey's strong belief is utterly irrelevant.
Whether the trial court's underlying decision—which precipitated the contemnor's action—is "wrong" is of no consequence in contempt proceedings and, therefore, does not justify disobedient behavior. We emphasize that even when a court's decision is erroneous, the court is entitled to—and, indeed, our system of justice requires—dignity and obedience. Trial courts will occasionally make erroneous rulings, particularly in cases that involve complicated questions regarding the admissibility of evidence, like this case. However, our system of justice deals with such errors by providing for appeals. (That Ginzkey fully understands the appellate process is perhaps best shown by the very appeals he has brought to us in these consolidated cases.)
An ethics opinion issued this month by the Legal Ethics Committee of the District of Columbia Bar is summarized below:
The imputation of a temporary contract lawyer’s individual conflicts to a hiring firm under D.C. Rule 1.10 depends on the nature and extent of the lawyer’s relationship with the firm and the extent of the temporary lawyer’s access to the firm’s confidential client information. A temporary contract lawyer who works with the same firm sporadically on a few different projects, or on a single project for a longer period of time, would not be “associated with” the hiring firm if the firm does not have or otherwise create the impression that the temporary contract lawyer has a continuing relationship with the firm, and the firm institutes appropriate safeguards to ensure that the temporary contract lawyer does not have access to the firm’s confidential client information except for the specific matter or matters on which he is working.
In addition, the temporary contract lawyer and the hiring firm must protect the confidentiality of all client information, and the firm must take appropriate steps to avoid obtaining the confidences and secrets the temporary contract lawyer learned during his former employment.