Monday, May 31, 2010

Permissible But With Extreme Caution

A judicial ethics opinion from Kentucky gives a "qualified" endorsement of judges friending on facebook:

In conclusion, even a cursory reading of this opinion should make clear that the
aCommittee struggled with this issue, and whether the answer should be a "Qualified Yes" or "Qualified No". In speaking with various judges around the state, the Committee became aware that several judges who had joined internet-based social networks subsequently either limited their participation or ended it altogether. In the final analysis, the reality that Kentucky judges are elected and should not be isolated from the community in which they serve tipped the Committee's decision. Thus, the Committee believes that a Kentucky judge or justice's
participation in social networking sites is permissible, but that the judge or justice should be extremely cautious that such participation does not otherwise result in violations of the Code of Judicial Conduct.

(Mike Frisch)

May 31, 2010 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Sunday, May 30, 2010

Serving The Dead

A Massachusetts attorney was suspended for six months and one day for serving a summary judgment motion on opposing counsel of record. The problem? He knew that counsel of record had recently died. The memorandum and order in the case notes:

Paul Irwin [opposing counsel] died on September 8, 2006, and the respondent learned of this death on September 26, 2006, by virtue of a telephone call from Attorney Michael Eschelbacher. Eschelbacher informed the respondent that he was the attorney for the Irwin estate and that he would be meeting with the [opposing client] Calcagnis to discuss settlement or referral to successor counsel. The respondent, in turn, informed Eschelbacher that he would be filing a motion for summary judgment shortly.

After that telephone call, Eschelbacher failed to contact the respondent again, despite having indicated he would. The respondent, for his part, did not contact Eschelbacher — the respondent apparently lost the note with Eschelbacher's name on it. Rather, the respondent, knowing that Irwin had employed a paralegal, telephoned and left numerous messages at Irwin's office, which the respondent knew to be located in his home. Although the name of Irwin's paralegal was in the respondent's files, he never reviewed his files to find it. Instead, the respondent assumed his messages were being forwarded by the paralegal to the attorney for the estate. The respondent never received a response to his messages. No successor attorney filed an appearance on behalf of the Calcagnis.

On February 9, 2007, the respondent mailed the summary judgment motion papers to Irwin's office, and on March 5, 2007, the respondent filed in the Superior Court the motion for summary judgment and statement of material facts. He included in the motion package a signed notice of filing in compliance with Superior Court Rule 9A (b) (2), indicating that his motion was served on the attorney of record for the defendants and further declaring, "I certify that no opposition was served in a timely fashion by the opposing party." On March 20, 2007, the respondent's motion for summary judgment was allowed without a hearing and judgment entered for Nike on May 21, 2007, in the amount of $268,225.57. The respondent obtained an execution, which was levied and suspended.

The Calcagnis learned of the levy, retained new counsel, and filed an emergency motion to set aside the judgment. The respondent opposed the motion arguing that the judgment should be preserved because the Calcagnis could not meet their burden of showing a likelihood of success on the merits. He did not concede that service had been improper. The Superior Court judge allowed the motion to set aside the judgment. The respondent was sanctioned and ordered to pay all the Calcagnis’ costs and attorney's fees in connection with the motion for summary judgment and their own emergency motion to set aside the judgment. The respondent paid the sanction as ordered, in the amount of $15,000, and withdrew his appearance for Nike.

The hearing panel rejected the suggestion that the rule requiring service on opposing counsel justified such service after counsel had died. (Mike Frisch)

May 30, 2010 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Friday, May 28, 2010

Gentlemanly Restraints Removed

The web page of the Massachusetts Board of Bar Overseers reports a disbarment imposed by a single justice of the Supreme Judicial Court for misappropriation of entrusted funds and related misconduct. The Board's Memorandum describes the misconduct and the attorney's response:

Vehemently assailing the committee members, the probate court judge, Attorney Davis, and personnel in the Office of Bar Counsel in ad hominem terms, the respondent proclaims that he has been limited, until now, “by the prudential veil of disclosure and criticism of judicial action applicable to an admitted attorney.” Disbarment, he suggests somewhat ominously, “would free him from those outdated and questionable restraints, observance of which, as a gentleman and professional, have hurt and cost him dearly.” He should be disbarred.

(Mike Frisch)

May 28, 2010 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Thefts From Law Firm Draw Nine-Month Suspension Recommendation

The Illinois Review Board has recommended a nine-month suspension of an attorney admitted in 2000. The attorney had clerked at and practiced with a law firm. When his income declined in 2005, the attorney received fees due the firm and misappropriated the funds for his own use. He stipulated as follows: 

The Administrator charged, and [the attorney] admitted, that on twenty-one (21) separate occasions between January 19, 2006 and January 3, 2007, [he] received fees from clients that should have been turned over to EMC [his firm]. Individual payments ranged from $270 to $7,500. [He] received a total of $30,020.00. Rather than turning the funds over to EMC, [he] took the money, without EMC’s knowledge or consent, and used it for his own purposes. Because of [his] fee agreement with EMC, his conduct resulted in conversion of approximately $15,010 from EMC. Given adjustments, the parties ultimately agreed that the amount [he] owed EMC was $12,345.20.

In an additional incident, a client paid [the attorney] $1,500. This incident, which was not part of the charges, occurred in mid-2006. [He] deposited that money in his own account, rather than giving it to EMC. [He] borrowed money from his brother and repaid EMC shortly after diverting the funds. [He] testified that he thought that, when he repaid that money, he discussed the matter with...an EMC partner and King’s mentor and friend. [He] did not tell [the partner] that there had been other similar incidents.

He stopped his misconduct when his income rose and his financial situation stabilized, but the conduct was discovered after an investigation into thefts committed by his secretary.

The Review Board rejected the Administrator's call for a one-year suspension:

Given all the circumstances of this case and given the precedent discussed above, we conclude that [the attorney] should be suspended for nine (9) months. In our opinion, a suspension of this length strikes a proper balance between the seriousness of [his] misconduct, and the aggravating and mitigating factors present here. The aggravating factors include the intentional and repeated nature of [his] misconduct, the amount taken, and the fact that [he] did not promptly make full disclosure; he really would have had no way of doing so as he did not keep any records of the amount he had converted. In mitigation, [he] did not engage in additional misconduct. No clients were harmed by [his] misconduct. [He] is in the process of making restitution satisfactory to EMC. He has expressed remorse and recognizes the wrongfulness of his conduct.

We also recommend that the suspension continue until [he] completes restitution to EMC and successfully completes the program offered by the Illinois Professional Responsibility Institute. Both conditions are appropriate under the circumstances of this case and [he] does not object to either condition.

It is not at all unusual for misconduct to be brought to light by the attorney's secretary. I recall many such cases from my time with the D.C. Bar. It is, however, unusual for misconduct to be discovered because the secretary also is stealing from the firm. (Mike Frisch)

May 28, 2010 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Thursday, May 27, 2010

"Less Than Stellar Customer Relations" Or Something More?

The Oregon Supreme Court imposed a 30-day suspension of an attorney for his failure to communicate with a client named Cohn. The court considered but was unimpressed with the attorney's view that the conduct displayed "poor business sense" but did not amount to an ethical violation:

The accused does not dispute any of the..facts.  Instead, he contends that, if the Bar and the trial panel had a "realistic understanding of trial practice," they would see that his actions amounted to no more than "[l]ess-than stellar customer relations."  In support of that position, the accused asserts that, during the eight-month period between the accused's last communication with Cohn in November 2005 and his July 2006 response to Cohn's letter threatening to terminate the representation, Cohn had to have understood the status of the case.  That is, Cohn had to have known that the Marriott had made no settlement offer, because Cohn would have had to be consulted about it.  In conclusion, the accused argues that there is no bright line concerning how long a lawyer can go without communicating with a client or how many client phone calls a lawyer can fail to return before the failure amounts to an ethical violation.  Here, according to the accused, he clearly did not drop below the standard of what a reasonable lawyer would have done in his circumstances because, he contends, Cohn was not actually harmed by the accused's failures. 

The accused displays a fundamental misunderstanding about what the Rules of Professional Conduct require.  RPC 1.4 requires lawyers to maintain reasonably adequate communication with their clients by keeping clients informed about the status of their matters, by complying with reasonable requests for information, and by explaining matters to the extent reasonably necessary to permit clients to make informed decisions.   Although RPC 1.4 is a relatively new rule in Oregon, a lawyer's duty to communicate with clients was a part of the diligence requirement of former Disciplinary Rule (DR) 6-101(B), which dealt with neglect of a legal matter.  In considering alleged violations of that rule, this court held that failing timely to communicate good or bad news to the client constituted a violation of that rule, as did failing to inform the client about the status of a case. The court also observed, in a case in which a lawyer did not write any letters to his client about the case and failed to return his client's phone calls or respond to the client's requests for progress reports, that neglect of a client and procrastination are violations of professional responsibility. (citations omitted)

In this case, we have no difficulty concluding that the accused's failure to communicate with Cohn went well beyond "bad customer relations" and violated RPC 1.4(a) and (b).  The accused failed to discharge his professional responsibility to keep his client reasonably informed about the status of the case when he did not apprise Cohn about communications with the Marriott, Cohn's health insurer's assertion of recovery rights, or his own judgment that settlement negotiations should not be (and therefore had not been) commenced.  He also failed to discharge his professional responsibility to respond to reasonable requests for information when he ignored Cohn's repeated requests for updates and information about the case and for confirmation of Cohn's understanding of how the case would proceed.  Those requests were reasonable in substance and timing. 

The client was a Florida resident injured outside a Marriott Hotel in Portland. The client slipped. The client fell. The client suffered and sought recompense.

The attorney was given 60 days to wind up his practice. (Mike Frisch)

May 27, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

The Difference Between A Jailhouse And A Courthouse

A majority of the Supreme Court of Washington reversed a criminal conviction for second degree murder of a defendant tried in a jailhouse rather than courthouse. Defense counsel had strenuously objected to the venue. The court noted:

The difference between jailhouses and courthouses is evident even in their
architectural contrast.  Courthouses are often monuments of public life, adorned
with architectural flourishes and historical exhibits that make them inviting to
members of the public.  Many of our county courthouses are on historical registries
and are visited each year by school children, civic groups, and tourists.  A jail, on
the other hand, is singularly utilitarian.  Its purpose is to isolate from the public a
segment of the population whose actions have been judged grievous enough to
warrant confinement.  Jail buildings are typically austere in character, and entrance
is subject to heightened security.

The majority's conclusion:

 We erect courthouses for a reason.  They are a stage for public discourse, a
neutral forum for the resolution of civil and criminal matters.  The unique setting that
the courtroom provides "is itself an important element in the constitutional
conception of trial, contributing a dignity essential to 'the integrity of the trial'
process."  Estes, 381 U.S. at 561 (Warren, C.J., concurring) (quoting Craig, 331
U.S. at 377).   The use of a space other than a courthouse for a criminal trial,
particularly when that space is a jailhouse, takes a step away from those dignities. 
We hold that the setting of Jaime's trial infringed upon his right to a fair and
impartial trial, and we remand for proceedings consistent with this opinion.

There are concurring opinions linked here and here and dissenting opinions linked here and here. (Mike Frisch)

May 27, 2010 in Law & Society | Permalink | Comments (0) | TrackBack (0)

The Prosecutors Of Marion County

Two attorneys in Marion County, Indiana were publicly reprimanded by the Indiana Supreme Court in the wake of alcohol-related driving offenses. that were committed while the attorneys served as deputy prosecutors.

In one matter, the attorney pled guilty to a misdemeanor of driving with a .15 or greater blood alcohol content. The attorney was no longer employed as a deputy prosecutor, according to the court's order. However, IndyStar.com reports that the attorney was just rehired.

The other pled guilty to a charge of reckless driving and resigned from employment.  (Mike Frisch)

May 27, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Indefinite Suspension For Sexual Behavior

The web page of the Ohio Supreme Court reports:

The Supreme Court of Ohio today imposed an indefinite suspension against the law license of [a] Fremont attorney...for multiple professional misconduct violations, including inappropriate touching of and sexual remarks to clients and others.

In a 6-0 per curiam opinion, the Court adopted findings by the Board of Commissioners on Grievances & Discipline against [the attorney] for “engaging in a pattern of inappropriate sexual communication and behavior with a number of women, including his clients, and failing to file a timely notice of appeal on behalf of a client.”

The Court agreed with the board’s determination that the sanction recommended by the parties is not sufficient to protect the public from further misconduct. “Because respondent has not yet received the treatment necessary to develop a realistic and effective plan to decrease his risk of repeating inappropriate sexual behaviors, he remains at risk to reoffend.”

Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in the case.

The opinion is linked here.

The attorney had engaged in misconduct with a juvenile client that involved instant messages of a sexual nature, playing "footsie" with her at a detention facility and telling her he was aroused. In another matter, he conducted an 90-minute interview with a client's girlfriend in which he touched her and spent most of the time talking about himself and his workouts. He showed another attorney photographs of a "scantily clad" client. He sexually harassed one divorce client and inappropriately touched another.

Another matter involved visits to the lockup at the Sandusky County Sheriff's Department. A female sergeant received a complaint from the attorney's female client about his inappropriate attire. The client later complained that the attorney had shown her pictures of other clients who were exotic dancers and had proposed a sexual liaison with her. The sergeant also complained about the attorney's discussion about the size of his penis with her.

The attorney was diagnosed by the Bar's clinical director with frotteurism (a type of sexual disorder) and  narcissistic-personality disorder. After a referral to a facility that specialized in sex-abuse issues, it was recommended that the attorney participate in a treatment program, not represent minors and "not use any steroids or supplements for the purpose of enhancing muscle mass or appearance." His prognosis after participating in the program was evaluated as "poor."

He sought further treatment but a polygraph examination "raise[d] doubt about the level of honesty he [was] showing concerning the extent of his sexual behavior problems."

The court concluded that he has "significant mental health concerns that he has failed to address in the three years since his misconduct came to light." Because he has not received necessary treatment, he "remains at risk to reoffend."  

Here is a related report from the Port Clinton News Herald. Mike Frisch)

May 27, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

D.C. To Consider Screening Proposals

An announcement from the web page of the District of Columbia Bar:

D.C. Bar Rules of Professional Conduct Review Committee is soliciting public comment on whether Rule 1.10 (imputed disqualification) of the D.C. Rules of Professional Conduct should be revised.

In February 2009, the ABA adopted amendments to Model Rule 1.10 to permit ethical screening with certain notifications and certifications—without client consent—of lateral lawyers who have moved between private organizations.

In light of the ABA’s action, the Rules Review Committee established a subcommittee to consider whether to recommend an expansion of lateral screening for the District of Columbia. The committee has not yet decided whether to make a recommendation on this subject to the Bar’s Board of Governors. To inform its consideration, the committee hereby requests comment from the Bar and public on the following issues:

  • Should the District adopt the amended model rule approach and permit an individual lawyer moving between private sector jobs to be screened from matters in which the lawyer’s new law firm or other organization is adverse to his or her former client?
  • If so, should the governing rule be:
    1. The ABA Model Rule formulation,
    2. The committee’s draft formulation (which contains several possible variants on post hoc reporting), or
    3. Another formulation, perhaps one that attempts to take into account the degree or significance of the individual lawyer’s involvement in the former matter?

This link will take you to the particulars. (Mike Frisch)

May 27, 2010 in The Practice | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 26, 2010

Who Is The Client?

A recent admonition is summarized on the web page of the Massachusetts Board of Bar Overseers:

In June 2007, the respondent met with a long-standing client and her mother. The client informed the respondent that her mother was terminally ill and her death imminent. The two women informed the respondent that they had reached an agreement that they wanted the respondent to memorialize concerning a house the mother owned.

The respondent understood that his client had agreed to let her mother live with her and that the client would fund a trust for the children of the mother’s other daughter in return for the mother’s transfer of her home to the client. The mother’s home was then uninhabitable.

The agreement that the respondent drafted called for the client to fund the trust within two years and had no practical means for enforcement. In addition, the agreement had no provision requiring the client to have her mother live with her or remedy for the mother if she did not. The client paid the respondent a minimal fee for drafting the agreement.

The respondent failed to clearly explain to the mother that he was not representing her interests. The mother reasonably believed that the respondent was providing legal services to her as well as to her daughter. The mother did not understand that, without a provision in the agreement requiring her daughter to have her live with her, her interest in living with her daughter or in having her daughter provide similar care was not protected. The respondent should have known that the client’s mother might have misunderstood his role as the client’s lawyer only, but he did not make reasonable efforts to correct her misunderstanding and did not advise her that the only advice he could give her was the advice to retain counsel.

By August 2008, a dispute arose between the client and her mother. The client’s mother was forced to move from the client’s home. In October 2008, the client sold the property. The client’s mother died in January 2009.

The respondent’s failure to explain his role sufficiently to the client’s mother when he reasonably should have known that she misunderstood his role in the matter violated Mass. R. Prof. C. 4.3(a).

This is kind of misconduct that should be covered in any law school ethics class. I'm sure most of us describe situations just like the one presented here in explaining the responsibility of an attorney to make clear who is or is not represented in a transaction. Where the non-client is elderly and infirm, there is the enhanced possibility for manipulation and abuse by the attorney and the client. (Mike Frisch)

May 26, 2010 in Bar Discipline & Process, Professional Responsibility | Permalink | Comments (1) | TrackBack (0)

Consulting For Profit And Discipline

The Pennsylvania Supreme Court approved a consent three-year suspension of an attorney convicted of making a materially false statement to the federal government. The statements (five in total) were in reports filed with the National Library of Medicine and falsely asserted that he did not receive income from an outside consulting business. In fact, he had received over &165,000 in outside income. His outside business was called Medico-Legal-Forensic Services.

 He also admitted that he had made several misstatements of fact in a deposition in a matter in which he served as a consultant and expert witnesss. the misstatements related to his employment with NIH and NIH's knowledge and approval of his consulting business. (Mike Frisch)

May 26, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 25, 2010

Current events in U.S. legal ethics, 2009-2010, according to my students (and benefit Tulane's PILF)

Posted by Alan Childress

Several students writing Independent Studies papers this spring on legal ethics for me, joined by some from an advanced ethics seminar taught by a colleague, have their work collected into a new digital book on current events May 2009 to present.  I edited the papers and wrote a Foreword to it, which explains its origins, topics covered, and other stories of the year, plus an ode to Mike Frisch here and John Steele at LEF as the leading bloggers for immediate ethics news and insights.  Mike breaks a ton of stories, you already know, and posts multiple times each day, and John among his regular posts does a nice annual roundup of the year's big stories, each December.  Some of those stories got covered, I explain, and some not, but in any event I think users will find the collection useful.  As the Foreword details, it is for a good cause.  Proceeds benefit the Tulane Public Interest Law Foundation, a nonprofit student org that sponsors Hot Topics icon indigent client representations and placements in public interest work.  Note:  Download FOREWORD here.

More details on the book itself and topics to come (and some chapters to be posted), if you do not want to read the Foreword, but mainly I wanted to preview the opportunity to buy this work.  Already it is available on Smashwords in multiple formats, such as ePub, PDF, HTML, rtf, and Palm, so anyone can read it without an app or Kindle. There the best format is PDF (footnotes do link) or the one for Sony readers, but we covered everything.

An even better format, with search function enabled and all links I added active, is on Kindle or its free apps for PC, iPad, Mac, iPhone, BlackBerry, and related devices or laptops.  The Amazon webpage for this timely book is now active and accepts downloads now, to an app.  But at least for now, Smashwords makes more money for PILF and also has the PDF, printable version, so that may be where you will go if you are not yet into Amazon ebooks.  Oh, on the iPad, use the Amazon app and the format should work great.  If not, let me know.

This is a followup to the post Publish Your Dissertation (but on topic for the blog!), and I can also help you publish other student seminar work and papers from academic conferences, preferably as part of the TPILF series.  The website for all this will be qpbooks.com, active tomorrow.  Submissions are on law and related subjects, not only legal ethics.  Much more info on proposals and other books sold are on the website.  For example, CLS scholar and Tikkun editor Peter Gabel did a digital version of The Bank Teller with me.

May 25, 2010 in Books, Ethics, Hot Topics | Permalink | Comments (1) | TrackBack (0)

Contingent Fee Allowed In Domestic Partner Litigation

The Ethics Committee of the South Dakota State Bar opines that a contingent fee may be charged in a contract action betwen domestic partners. Rule 1.5(d) prohibits such arrangement in domestic relations actions involving divorce, support or the value of a property settlement. The claims here do not fall within the prohibitions:

...since the desired recovery is based on a cash transaction for the purchase of real property, it is much more in the nature of an ordinary contract action than a domestic relations action. It is therefore not subject to the restrictions of Rule 1.5(d) and a contingent fee is permissible.

(Mike Frisch)

May 25, 2010 in Law & Business, Professional Responsibility | Permalink | Comments (1) | TrackBack (0)

ABA Take Heed

A notable trend in the past 25 years has been the rise of Bar-sponsored programs dedicated to providing help and treatment to members who have struggled with addictions and/or mental health issues.

Sometimes, treatment does not work and the attorney relapses into active addiction. What obligation (if any) does the Bar program have to the public to report the lapse if there is also evidence that the condition impairs the ability of the attorney to practice in an ethical manner? What obligation (if any) does the Bar have to report evidence of past or ongoing serious ethical violations learned in the course of seeking treatment?

The Arkansas Supreme Court touched on the reporting issue in a recent per curiam order.

The court created the original lawyers assistance program in 2000. The program also treats judges. The program sought action on three matters relating to the operation of the assistance program that the court addressed in its order.

First, the court declined to extend the program to law students, deferring action on the request pending clarification and additional information. Second, the court clarified and consolidated the procedural rules governing the program.

The third issue that the court addressed raises policy issues regarding the balance to the struck between protecting the confidentiality of information received by the program that raises substantial questions about honesty, trustworthiness or fitness to practice and the duty to report such misconduct. ABA Model Rule 8.3 favors the program over the public, exempting from the disclosure obligation any information learned from the treated attorney through participation  in the program. ABA Model Rule 8.3(c) essentially treats such information as protected by the ethical duty of confidentiality, creating a faux attorney-client relationship between the program and the treated attorney.

This has always troubled me. My view is that a Rule that trumps the duty to report misconduct no matter what an attorney has done and no matter the danger of future misconduct ignores the public interest articulated by Rule 8.3. Lawyers are given the blessing of self-regulation and have an obligation to create regulations "conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar." ABA Model Rules, Preamble at [12]. In my view, granting categorical protection to all information learned in treatment is not in the public interest

The Arkansas court here amended its Rule 8.3. The confidentiality of information obtained by the treatment program is protected from disclosure. However, Rule 8.3(d) provides that the duty to report is reinstated if the program volunteer has reason to believe that the attorney is failing to cooperate with treatment, is engaged in  criminal behavior or has engaged in otherwise reportable misconduct "which is beyond or suceeds that behavior upon which the attorney's participation in [the program] was initially based."

For reasons that I will set out in a future post (or law review article), I would abolish ABA Model Rule 8.3(c). Short of that, this Arkansas rule is a definite improvement over the Model Rule. The Rule makes it clear that there are circumstances in which the public interest is greater than that of the treated attorney. (Mike Frisch)

May 25, 2010 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Monday, May 24, 2010

Advice From a Former Bar Prosecutor

The Louisiana Supreme Court imposed an 18-month suspension of an attorney who had stipulated that he had failed to provide diligent representation to three clients and "repeatedly provided them with inaccurate or incomplete information." One one matter, he undertook a Texas case without being admitted there.

In the disciplinary case, the attorney admitted that he is an alcoholic and a drug addict. He denied that he was using alcohol and cocaine in a bar deposition and was randomly tested by the Bar's Lawyers Assistance Program. He tested positive for cocaine use in a random test and admitted he had lied in his bar deposition. He claimed that the positive test "was an isolated incident."

The court was persuaded that the addictions caused the misconduct, but found that the attorney was not recovering from his addictions. He had dropped out of the Bar's program after the positive test.

The court made the suspension effective to the date of an interim suspension imposed after the positive test.

If you want to mitigate your bar sanction based on a cocaine addiction, it is helpful to stop using it. (Mike Frisch)

May 24, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

The Wrong Way To Collect Fees

A Colorado attorney was suspended for 18 months based on his conditional admission of misconduct. The summary of the case indicates that:

...[the attorney] settled his own claim for fees against a former client as he negotiated his current client's debt to the former client, paying himself from funds set aside to pay medical claims owed to the former client, and using confidential information from the representation to compromise the debt.

The attorney also had failed to maintain contemporaneous time for billing purposes and failed to place unearned fees in an escrow account. (Mike Frisch)

May 24, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Disqualification Order Not Appealable

The South Carolina Supreme Court held that the State may not directly appeal an order disqualifying an assistant solicitor. The facts:

The defendant in this case...was charged with the murder of his ex-wife...as well as one count each of first-degree burglary and possession of a firearm during the commission of a violent crime and three counts of assault with intent to kill. 

An assistant solicitor in Clarendon County was assigned to prosecute the case.  Defense counsel...moved to disqualify the individual assistant solicitor based on the fact that the husband of the assistant solicitor had represented Wilson in his divorce from the murder victim just sixteen months before the alleged murder, and the brother-in-law of the assistant solicitor had represented Wilson at his bond hearing on the criminal charges. 

The circuit court granted the motion for disqualification.  The State appeals from this pretrial order, arguing the circuit court applied an incorrect legal standard in granting the motion for disqualification.

The court concluded:

We hold the policy implications present in Hagood, i.e., the right of a party to retain counsel of his or her choosing and the development of an attorney/client relationship, are not compelling factors when considering the disqualification of an assistant solicitor.  The reasons the Court articulated in Hagood as justification for allowing the direct appeal are not present here, as the State has no substantial right that has been invaded, and the State's ability to appeal has historically been limited in criminal matters.

The appeals in which this Court has considered the issue of disqualification of either one solicitor or an entire solicitor's office have been appeals arising after the defendant's conviction, as they are in the posture of the defendant raising the issue as a ground for reversal.  This is consistent with the general rule that a defendant may not appeal until after he is convicted and sentenced. We see no justification for extending different treatment to the State so as to allow direct appeal of this pretrial order. (citations omitted)

(Mike Frisch)

May 24, 2010 in Law & Business, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Saturday, May 22, 2010

Blogging PD Suspended

The Illinois Supreme Court accepted the proposed sanction of its Review Board and imposed a 60 day suspension against an attorney who had blogged about her cases. Legal Blog Watch had reported the allegations:

A former Illinois assistant public defender faces disciplinary charges over postings to her blog that Illinois authorities say exposed client confidences and revealed her complicity in a client's fraud on a court. The attorney denies the charges and says she plans to hire legal counsel to help her fight them.

The focus of the disciplinary complaint is Kristine Ann Peshek and her former blog, "The Bardd Before the Bar -- Irreverant Adventures in Life, Law, and Indigent Defense." Among other things, the blog chronicled her work as an assistant public defender in Winnebago County. She discontinued the blog when her supervisor became aware of it in April 2008 and fired her.

The Review Board had approved a stipulated disposition:

Respondent's conduct in referring to a judge as "clueless" and referring to another judge as "a total asshole," is similar to the respondent's misconduct in In re Barringer, M.R. 17621, 00 SH 80 (September 21, 2001). In that case, the respondent filed a motion to substitute a judge in a client's dissolution of marriage matter. The motion contained false statements about the judge's financial obligations and credit limits. The motion also contained false allegations that the judge had conducted an ex parte interview with Barringer's client's son. Barringer was censured. While Respondent's conduct was similar to the respondents' conduct in Koziol and Barringer, Respondent also revealed client confidences in her blogs. Therefore, a 60-day suspension is more appropriate than the censures imposed in Koziol and Barringer.

Given Respondent's actions in revealing her client's confidences on the Internet, and her actions in advising her client not to correct her misstatement to the court, a 60-day suspension will serve the purposes of the disciplinary system and is within the range of this Court's precedent in cases involving comparable misconduct.

We reported the charges filed by the Administrator here.  (Mike Frisch)

May 22, 2010 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Friday, May 21, 2010

Strong Words

The Missouri Supreme Court discharged a finding of criminal contempt against an attorney for "strong words he used in petitioning the court of appeals for a writ to quash a subpoena issued for a grand jury..." The attorney accused the prosecuting attorney and judge overseeing the grand jury of a conspiracy to "threaten, instill fear and imprison innocent persons to cover-up and chill public awareness of their own apparent misconduct using the power of their positions to do so."

The attorney was found guilty of criminal contempt by a jury and was sentenced to 120 days in jail. The court here held that the essential elements of contempt initiated by a judge against an attorney include a false statement, made either knowing of the falsity or in reckless disregard of truth or falsity and an actual or imminent impediment or threat to the administration of justice. (Mike Frisch)

May 21, 2010 in The Practice | Permalink | Comments (1) | TrackBack (0)

Between Chattel And Children

The Vermont Supreme Court held today that a bereaved dog owner can only recover the replacement cost of their murdered pet:

This case asks the Court to decide the proper measure of damages for the loss of a family dog.  Plaintiffs Sarah and Denis Scheele appeal from a judgment denying them recovery for emotional damages for the intentional killing of their pet dog, Shadow.  Though plaintiffs recovered $155 in economic damages for the destruction of their property, the issue is whether they are entitled to damages for emotional distress or loss of companionship as a result of Shadow’s death.  They claim that the real worth of a pet is not merely financial and cannot be measured solely by the replacement value.  Thus, they argue, their emotional suffering—the result of defendant’s malicious and intentional acts—warrants noneconomic damages.  The Washington Superior Court barred such recovery, holding that Vermont does not recognize noneconomic damages for the malicious destruction of personal property, even when the property is a beloved pet.  We affirm.

The court recited the stipulated facts:

In July 2003, plaintiffs were visiting from their home in Maryland when they stopped in the parking lot of a church in Northfield, Vermont.  While in the lot, their unleashed dog, Shadow, wandered onto an adjacent property.  The owner of that property, defendant Lewis Dustin, was sitting on his porch with a pellet gun planning to shoot at squirrels.  When Shadow came into his yard, defendant aimed his pellet gun at Shadow and shot, killing Shadow.  Shadow had not exhibited any aggressive behavior towards defendant, nor posed any threat to him, nor was defendant in any physical danger at the time he fired his gun at Shadow.  Shadow died as a result of a pellet shot to the aorta valve resulting in a hemorrhage.  The shooting of Shadow by defendant was intentional and malicious.  Plaintiffs stood nearby and observed the impact of the shot on their dog and Shadow’s immediate pain and death shortly thereafter.

The court noted that pets fall "somewhere between chattel and children" in the eyes of the law. (Mike Frisch)

 

May 21, 2010 in Law & Society | Permalink | Comments (0) | TrackBack (0)