Tuesday, November 30, 2010
The Illinois Administrator has filed a disciplinary complaint against the former elected state's attorney of Christian County, Illinois. The complaint alleges his nomination petition for a circuit court judgeship was altered and contained false signatures and notaries. The complaint also alleges that he did political work on county time:
At all times alleged in this complaint, Christian County Ethics Ordinance 2004 CB 013 prohibited county employees from engaging in "prohibited political activity" during any time worked by or credited to the employee. The ordinance also barred county office holders from engaging in "prohibited political activity" on work premises or when the office holder was executing his or her official duties. County employees and officers were also barred from using County property or resources in connection with any "prohibited political activity." Prohibited political activity included, "initiating for circulation, preparing, circulating, reviewing, or filing any petition on behalf of a candidate for elective office."
On various occasions between June 8, 2009 and November 2, 2009, Respondent and [another employee] performed work related to Respondent’s campaign for judicial office during work hours in the State’s Attorney’s office. The work included typing information on nominating petitions, making telephone calls and notarizing circulators signatures on nominating petitions. Some of the work was performed using County equipment.
The State Journal-Register has a detailed report on the conduct at issue. The November 2009 article reports that the attorney withdrew from the judicial race (the alterations had to do with a switch of races) and had contacted the ARDC about the situation. (Mike Frisch)
Disbarment is warranted, absent compelling circumstances, for repeated intentional misappropriation, false representations to clients and the fabrication of pleadings to conceal the misconduct, according to a decision of the Maryland Court of Appeals. There were no such compelling circumstances here.
One interesting aspect of the decision notes that the attorney had self-reported the misconduct. A concurring opinion allows for the possibility of a lesser sanction for a "true" self-report of misconduct. Here, the report was made after the misconduct had been discovered. (Mike Frisch)
The web page of the Ohio Supreme Court reports:
The law license of [a] Cleveland attorney...has been suspended for two years, with the final six months of that term stayed on conditions, for violations of the Rules of Professional Conduct in his representation of two clients and his conduct in the ensuing disciplinary investigation.
The Court adopted findings by the Board of Commissioners on Grievances & Discipline that [the attorney] committed multiple ethical violations by charging a clearly excessive fee, dividing his fees with other lawyers without disclosing the terms of that division, intentionally damaging or prejudicing a client during the course of his representation, and making knowingly false statements of material fact during a disciplinary investigation.
As conditions for staying the final six months of [his] suspension, the Court imposed the requirements that he commit no further misconduct, comply with an agreement to pay $15,000 in restitution to the client from whom he collected an excessive fee, and serve one year of monitored probation upon his reinstatement to practice.
The link to the court's opinion is not yet on line. (Mike Frisch)
Monday, November 29, 2010
The Utah Supreme Court found that a district court had abused its discretion by denying a plaintiff leave to amend his complaint against his former employer and supervisor. Those allegations included:
...[the supervisor] had engaged in numerous questionable management practices. Specifically, when an employee did not meet performance goals, [the supervisor] would draw a mustache on the employee using permanent marker or he would remove the employee's chair...he would patrol the employees' work area with a wooden paddle, which he would use to strike desks and tabletops. [The employer] was aware of [his] actions and encouraged his behavior because it led to increased revenue."
Could things get worse?
You bet, according to the complaint. The supervisor asked for volunteers for "a new motivational exercise." The exercise was waterboarding, after which the plaintiff alleges that he was told that he and his co-workers "should work as hard at making sales as [he] had worked at trying to breathe."
The case was remanded for further proceedings.
Wired has information about the suit here. (Mike Frisch)
The Louisiana Attorney Disciplinary Board has adjudicated charges against a disbarred attorney. The attorney had a history of discipline that led up to the ultimate sanction.
According to the board, the latest round of ethical violations also would bring disbarment. Thus, the board recommends that the period of disbarment be extended for two years beyond the present date when the attorney may petition for reinstatement. (Mike Frisch)
The New Jersey Disciplinary Review Board considered two matters involving an attorney and concluded that one merited a reprimand and the other an admonition.
The board imposed a censure, noting that the attorney's alcohol and marital problems (his divorce attorney said it was the worst he ever handled) had affected his behavior. The attorney must provide proof of present fitness to practice, practice under a proctor's supervision until further order and continue with treatment for his addiction. (Mike Frisch)
Saturday, November 27, 2010
Over at Minor Wisdom, Ray Ward is starting to share his view from the jury voir dire. More thoughts to come, but the money quote so far is that "while lawyers should not be immune from jury duty, we really should get CLE credit for it." Also, his blog reminded me of his excellent and serious post five years ago at JD Underground on lawyers and depression, Depression, The Lawyers' Epidemic: How You Can Recognize the Signs. [Alan Childress]
Wednesday, November 24, 2010
The New Hampshire Supreme Court affirmed the dismissal of a negligence action against a golf course brought by a golfer who had been seriously injured when a ball he hit struck a yardage marker approximately 17-20 yards in front of him. The ball came back at him and hit him in the eye.
The court concluded that obstacles and "errant balls" are a risk that a golfer assumes when playing a round. (Mike Frisch)
The Colorado Presiding Disciplinary Judge has accepted an agreed disposition and imposed an eighteen-month suspension with all but nine months stayed and probation for two years for a breach of confidentiality in the representation of a criminal defendant:
Respondent and his co-counsel represented a client charged with multiple felony counts for stealing $1.2 million from her employer. During two in camera conferences held without their client present, Respondent and his co-counsel made statements to the prosecutor and the judge related to their disagreement with their client’s decision to reject a plea offer and other statements to preserve their own interests and in-turn, failed to maintain the confidences of their client.
A majority of the Illinois Review Board has rejected some findings and a proposed suspension of a Hearing Board and has recommended a public censure of an attorney for misconduct in connection with the designation of medical experts in civil litigation. One of his "doctors" had lost his license in the wake of a criminal conviction.
The majority found that the the circumstances were such that suspension is not appropriate. Then, this "postscript" turns the tables on the bar prosecutor:
This case involves the not always clear line to be drawn between allowable, but imperfect advocacy and professional misconduct. In courtrooms all across America every day, lawyers make mistakes, they are sometimes careless and sloppy, and they push the envelope, so to speak. As advocates, they are often less than objective and they attempt to gain every advantage from real or perceived weaknesses in the positions of their adversaries.
Our disciplinary system cannot be so unforgiving that every misstatement of a lawyer offered in the heat of courtroom battle ends up as an ARDC matter. One need look no further than the disciplinary proceedings in this case to appreciate the problem. The Administrator's trial counsel asked [the attorney] whether his instanter motion for leave to file the unsigned opinion letters had been granted, and [he] responded, "No." The following then transpired:
Q. But that's contrary to what Judge Frobish wrote on the docket sheet where it says on Page 2 of Administrator's Exhibit No. 1 on the 3/22/05 date, the third paragraph, "[the attorney] files this day the motion for leave to file the 5/2-622 affidavits and makes three separate filings containing the attorney's affidavit and an unsigned opinion letter," correct?
A. That's exactly what the half sheet says, yes.
Thereafter, and presumably on the basis of the foregoing evidence, the Administrator's counsel successfully argued to the Hearing Board that the affidavits and opinion letters had been filed. But as this report shows, neither the docket sheet, nor transcript, indicates that the motion was granted. The filings referenced in the docket sheet were attachments or accompanying documents to the instanter motion, which is usual practice for any proposed filing.
Should not the Administrator's counsel have known this and conceded that the affidavits were not filed pursuant to court leave? This fact was arguably important because it corroborated [the attorney's] defense that, once in the courtroom, he made no attempt to mislead the judge with the affidavits.
Similarly, the Administrator's counsel seized upon the "One has not" paragraph to claim that [the attorney] represented to Judge Frobish that one of his testifying experts had signed a letter opinion. She did it during questioning of [the attorney] and again in final argument. As noted, this claim on her part was a skewed reading of the record because 8 lines later in the transcript, probably within 20 seconds at the hearing, [the attorney] corrected the misstatement by telling the judge that only his consultant, and neither of the testifying experts, had signed a letter opinion.
And she was apparently successful in her argument because the Hearing Board quoted only the "One has not" paragraph in making its finding that [the attorney] made false and misleading statements. Again, should not counsel have carefully explained to the Hearing Board that [the attorney]corrected his misstatement, and that he had actually represented to the judge that only his consultant had signed a letter opinion?
Yet, if the Administrator's counsel was to be subject to a disciplinary complaint for the foregoing conduct, we might as well shut down America's courtrooms. No lawyer would be immune from a similar complaint. In short, our adversary system encourages zealous, but not always perfect, advocacy. In our view, most of the charges against Respondent, like the examples above, were instances of imperfect advocacy — not professional misconduct. (citations to record omitted)
A dissent explains the key facts and would favor a suspension:
At the hearing [in the underlying case], the Respondent in presenting the affidavits also made statements that were intentionally misleading. He told the Court the board certified physician in internal medicine with the specialty in nephrology had reviewed the records and was the one who drafted the letter attached to the Respondent's affidavits. The Hearing Board found that this statement was "a statement of material fact to a tribunal which Respondent knew or should have known was false in violation of Rule 3.3(a)(1) of the Illinois Rules of Professional Conduct." In his testimony at his disciplinary hearing, the Respondent acknowledged that Dr. Leslie was the only physician with an expertise in internal medicine and nephrology with whom he had ever discussed the case. He also acknowledged that as of [the hearing date], Dr. Leslie had never reviewed any medical records nor issued a written report in support of the case's merit. He also acknowledged that medical records which Lerner had said should be obtained, never had been.
Finally, the statement Respondent made when questioned by Judge Frobish at the...hearing that "I do have a signed letter of consultant" was not a truthful statement, as the majority suggests, because the full statement was "I do have a signed opinion letter of a consultant who is an internal medicine physician." He did not and he knew he did not.
The majority notes that the affidavits were not actually "filed." However, they were clearly submitted to the Court to advance the plaintiff's position. The question is were they false and were they presented with the intent to mislead the Court. The Hearing Board concluded they were and I do not see a basis for concluding otherwise. To this point, the appellate court in affirming the dismissal in the Crull case reached the conclusion that the Respondent was trying to hide Lerner's identity and lack of qualifications. Crull, 388 Ill.App.3d at 1046, 904 N.E.2d at 1191. Regrettably, it is obvious what he was doing and why.
Because I have reached a different conclusion about the Hearing Board's findings, I cannot join in the recommendation of a censure as the appropriate sanction. In other cases, the Supreme Court has suspended lawyers for misconduct involving false and misleading statements to a court.
Tuesday, November 23, 2010
The Florida Judical Ethics Advisory Committee has opined on a subject that has long fascinated legal ethics scholars. Here is the result:
Whether a judge may allow juveniles to perform their community service hours by participating in a jogging program with him.
ANSWER: No. Such an action, even if well-intentioned, reasonably could place the judge in situations undermining the impartiality of the judge’s judicial office.
The inquiring judge is assigned to a juvenile division in which the judge sometimes orders juveniles to perform community service hours as a condition of probation. The judge wants to create a program allowing juveniles to perform their community service hours by jogging with the judge at a school near the juvenile courthouse. The judge states that the program would be optional, and that law enforcement and juvenile probation officers would be present to certify the juveniles’ presence so that the judge would not become a potential witness if an issue arises about a juvenile’s involvement in the program. The judge would not engage in conversation with the juveniles about their cases. The judge further states that if any case raises conflict issues, the judge would enter an order of recusal.
The judge wishes to create this program to serve juveniles in several ways: curb their delinquency; improve their health; give them a more positive self-image; and provide them with positive role models.
It appears that the judge’s desire to create this program is well-intentioned. However, the judge’s participation in such a program likely would violate Canons 2A, 2B, 3B(7), and 5A(1), (2), (5) & (6) of the Code of Judicial Conduct...
Monday, November 22, 2010
The Louisiana Supreme Court has disbarred a former district judge of the Parish of Caddo as a result of a racketeering conviction. The judge had used his judicial office to enrich himself by, as the indictment alleged and a jury found, "in return for cash and other things of value, [the judge] made himself available to quickly set bonds, recall arrest warrants, and remove probation holds for individuals who had business in his court."
He appealed the conviction to the Fifth Circuit. The Supreme Court denied certiorari.
The judge resigned his judicial office and resumed his status as a lawyer. He was sentenced to ten years imprisonment. The disbarment is permanent. (Mike Frisch)
After rejecting his prior proposed consent dispositions, the Supreme Court of Georgia accepted an attorney's voluntary license surrender, which is "tantamount to disbarment."
The attorney had been employed at Greenberg Traurig and had billed nearly $500,000 in false invoices. The Atlanta Bankrutcy News reported the court's earlier decisions to reject a sanction less than disbarment:
Between 2003 and 2009, [the attorney] used the name of an independent investigator when billing bankruptcy clients but he performed the services himself out of the firm's Atlanta office. He also performed title examinations and other services under two additional fake names.
Greenberg promptly terminated his employment upon hearing about the scheme and reported him to the Georgia Bar.
Michael Shaw proposed a law license suspension of between six months and a year a few months ago but was rejected by the Georgia Supreme Court. His second request was for a two-to-four-year suspension but also was rejected.
Associate Justice David Nahmias wagged his finger at both Michael Shaw and the State Bar of Georgia for requesting such a light sentence, pointing out that he only stopped when he got caught:
"In my view, Michael J.C. Shaw is fortunate not to be incarcerated in a state or federal prison for the half-million-dollar fraud he perpetrated against his employer, along with related crimes such as identity theft and misuse of someone else's social security number."
In his defense, Michael Shaw said he was going through some difficult personal issues, including his claim he had trouble dealing with the deaths of his grandparents and his wife's miscarriage. He also said he believed the $526,922 in restitution he repaid Greenberg should be considered.
Paula Frederick, the Georgia Bar's general counsel, said anything short of disbarment (permanent revocation of his law license) would be unacceptable.
Saturday, November 20, 2010
A New Jersey attorney has been censured for misconduct in the representation of a client for injuries sustained in a bar fight with NBA star Carmelo Anthony. The client told the attorney that he had a videotape "depicting Anthony and another man, who was severely beaten during the fight." Anthony's sports agent contacted the attorney and sought to see and purchase the tape. The attorney consulted counsel and was told that if there were no threats, then the negotiation was "legitimate and legal."
The attorney did not participate in a meeting between the client and an agent in which the client demanded a $3 million payment. He did meet with the agency's attorney and arranged for a settlement. He was arrested in Central Park while waiting for delivery of a $1.25 million settlement check to the client's cousin in the Trump International Hotel.
He was charged with grand larceny and pled to a misdemeanor attempt grand larceny. He cooperated with the prosecution and voluntarily refrained from practice for almost two years.
The Disciplinary Review Board found:
Here, respondent's misconduct was serious. Nevertheless, the record strongly suggests that naivete, inexperience, and a total lack of understanding of his involvement in an extortion plot played a great role in his actions. In a misguided fashion, he unwittingly participated in a matter that turned out to be criminal. He had no actual knowledge of the scheme-he did not attend any meetings in which the sale of the videotape was discussed.
The attorney admitted that he made a " 'horrible' decision to take the case and that he should have withdrawn from it when he saw warning signs." (Mike Frisch)
The New Jersey Disciplinary Review Board has ordered a suspension of three months conditioned on proof of fitness of an attorney who had "left obscene and threatening messages on a former client's answering machine and later threw a hammer through the client's closed living room window." The attorney did not file an answer to the bar complaint.
The underlying case involved the defense of a consumer fraud action. Judgment was entered against the client and no appeal was taken. When the judgment was executed three years later, the client claimed surprise and asserted that the attorney should have appealed.
That evening, the attorney met with the client at the client's home. The attorney "appeared intoxicated and acted in a belligerent manner toward [the client], but left without incident." Three phone messages were left at 2 am the next morning. The hammer throw was an hour later. The client "peered through the broken window just in time to see [the attorney] drive off."
The attorney pled guilty to a petty criminal charge.
in 2008, the attorney reached an agreement in lieu of discipline that included restitution for the window, that he attend AA meetings and a letter of apology to the client. He failed to report compliance with the conditions but later stated that his alcoholism and depression had prevented him from doing so. The board here rejected charges that his non-compliance constituted a failure to cooperate with ethics authorities or was prejudicial to the administration of justice.
The attorney must submit proof of fitness to practice by a mental health professional approved by the Office of Attorney Ethics. (Mike Frisch)
Friday, November 19, 2010
The Illinois Administrator has filed a complaint alleging that an attorney falsely certified that he had completed online CLE courses (including several on ethics topics). According to the complaint:
Each online course set forth above, required the user to respond to prompts during the course, at approximately ten minute intervals, to insure that the user was actively participating in the course.
On various occasions between July 27, 2009 and July 30, 2009, Respondent did not watch the online courses set forth...above, and Respondent directed a secretary in his office to watch the courses on a laptop computer and respond to the prompts as if he were watching the courses.
At all times alleged in this complaint, Supreme Court Rule 796(a)(2), required that every Illinois attorney subject to the MCLE requirement, certify his or her compliance with the required hours of CLE activity.
...Respondent reported to the MCLE Board that he had completed 20 hours of CLE credit (including 4 hours of professional responsibility credit) during the 2007 to 2009 reporting period. Respondent made the report on the MCLE Board's online reporting system and certified each statement set forth below:
I am the attorney identified at the top of this form.
I certify that the information contained in this certification to the MCLE Board is true and correct.
I have read MCLE Rule 796 of the Supreme Court of Illinois which lists the penalties for submitting an inaccurate or a false certification to the MCLE Board.
Respondent's submission of information and certification to the MCLE Board was false. Respondent knew that the information and certification he submitted to the MCLE Board were false because he did not complete 20 hours of CLE classes during the reporting period and he directed a secretary to complete some of the CLE classes for him.
Irony alert: One of the courses was subtitled "10 Ways to Reduce Your Chances of Being Sued or Disciplined." Another was "At the Crossroads of Compliance: Which Way to Turn?" (Mike Frisch)
The Nevada Supreme Court affirmed the grant of summary judgment to a law firm defendant because the plaintiff had already achieved a full recovery in a claim against a departed firm partner. The court lays out the facts:
Elyousef, a client of the O’Reilly firm, entered into a business transaction with his attorney, C. Dean Homayouni, who was employed by O’Reilly during the early stages of the transaction. The transaction resulted in Homayouni obtaining Elyousef’s interest in Nevada Oil and Land Development, LLC (NOLD), which in turn owns a gas station in Las Vegas. Homayouni left O’Reilly because the law firm opposed the transaction due to a conflict of interest between Homayouni and the firm’s client, Elyousef.
When the business relationship soured, Homayouni sued Elyousef. Elyousef filed a counterclaim against Homayouni, alleging that Homayouni negligently caused him to lose his interest in NOLD. The district court awarded Elyousef $150,000 in damages plus $225,631.22 in costs and fees. Homayouni subsequently settled with Elyousef for $50,000 plus the return of his interest in NOLD. Elyousef then sued O’Reilly for breach of fiduciary duty, negligence and legal malpractice, negligent supervision, respondeat superior, breach of contract, and breach of implied covenant of good faith and fair dealing. The district court granted summary judgment in O’Reilly’s favor, concluding that the doctrines of double recovery and issue preclusion barred Elyousef’s ability to recover from O’Reilly. On appeal, Elyousef maintains that neither doctrine bars him from further recovery.
The Iowa Supreme Court has imposed a 60-day suspension in a matter that involves a 74 year old attorney who has practiced law for 45 years. The court accepted as binding a stipulation of facts but rejected the 30 day suspension recommended by its disciplinary board.
The attorney's son was charged with sex offenses against the son's stepdaughter. The attorney arranged for his surrender to authorities. Rather than surrender, the son kidnapped his spouse and biological daughter. The son was later arrested and incarcerated.
The spouse obtained a no contact order against the son and instituted divorce proceedings. The attorney represented the son. The spouse also had counsel.
The attorney met with the spouse (without the knowledge or permission of her counsel) and gave her a communication from the son in violation of the no contact order. He was charged with witness tampering but that charge was dismissed. He was then charged with suborning perjury and aiding the violation of the no contact order. He was acquitted of the perjury but convicted of the no contact violation, a misdemeanor offense.
At the meeting with the spouse, the attorney had discussed conditions that might lead to a favorable settlement of the divorce case. This discussion violated the rule against offering an inducement prohibited by law. One aggravating factor was a prior reprimand for dishonesty.
This link from TheMessenger relates details about the son's trial. (Mike Frisch)
The New York Appellate Division for the First Judicial Department affirmed the dismissal of claims brought against a law firm by a client for whom the firm had done estate planning. The claims arose from the firm's representation of her husband with respect to his estate plan. The court found no privity with respect to the husband's estate planning and that any damages were grossly speculative:
In New York it is well established that absent fraud, collusion, malicious acts or similar circumstances, the draftsperson of a will or codicil is not liable to the beneficiaries or other third parties not in privity who might be harmed by his or her professional negligence...Defendants demonstrated that while they represented plaintiff in her estate planning and other matters, she was not in privity with them with regard to her late husband's estate planning. The absence of such privity remains a bar against her estate malpractice claims...
Plaintiff's subjective belief that she had engaged in joint estate planning or was jointly represented with her late husband is insufficient to establish such privity... Contrary to plaintiff's contention, this case is not akin to Estate of Nevelson v Carro, Spanbock, Kaster & Cuiffo (259 AD2d 282 ), in which the plaintiff beneficiary was intimately involved in the estate planning and relied upon the attorney's advice in the course of establishing a sham corporation intended to avoid estate taxes. Indeed, plaintiff herein was never involved in the planning of the estate and did not rely on any advice related thereto that might sustain her claim.
Plaintiff cannot bring her claim pursuant to the "approaching privity" standard outlined in Prudential Ins. Co. of Am. v Dewey, Ballantine, Bushby, Palmer & Wood (80 NY2d 377, 383 ). There is no evidence that defendants knew and intended that their advice to plaintiff's late husband was aimed at affecting plaintiff's conduct or was made to induce her to act. Nor is there evidence that plaintiff relied upon defendants' advice to her detriment. Significantly, the standard is not satisfied when the third party was only "incidentally or collaterally" affected by the advice (see id.).
In any event, plaintiff cannot recover damages that are grossly speculative (see Phillips-Smith Specialty Retail Group II v Parker Chapin Flattau & Klimpl, 265 AD2d 208, 210 , lv denied 94 NY2d 759 ). Defendants demonstrated that plaintiff could not satisfy the causation element of her malpractice claim because she could not prove that her inheritance would have increased if defendants had advised her late husband about a separation agreement that required him to leave half of his probated estate to his son. While plaintiff suggests various things her late husband could have done to ensure her more money than she eventually received, she cannot prove precisely what he would have done had he received different advice. Therefore, she cannot establish that but for defendants' failure to advise her late husband of the separation agreement, she would have received more money. In this regard, we note that plaintiff's late husband had the right to reduce her inheritance at any point in time.
Thursday, November 18, 2010
The New Jersey Supreme Court has held that the petition to recall United States Senator Robert Menendez is unconstitutional. The court reversed the judgment of the Appellate Division and vacated an order to the Secretary of State.
Two justices dissented, "expressing the view that because there is no present needto reach the constitutional question urged upon the Court and, in any event, this appeal raises nothing unconstitutional about New Jersey's recall election provisions, the recall process should go forward." (Mike Frisch)